« EelmineJätka »
or a mere contract to lend money (j). (3) The assignment need not necessarily be for value (k). (4) The assignment must be “ in writing under the hand of the assignor.” (5) Express notice in writing must be given to the debtor (1). In equity notice in any form was sufficient. (6) The assignee, whether for value or not, takes subject to all equities subsisting against the assignor, whether he (the assignee) has notice of them or not (m).
It may be added that, if an assignment for some reason, does not come within the scope of the section, it may, nevertheless, be enforceable as an equitable assignment, subject to the conditions applicable in such a case (n).
Negotiable Instruments.--A negotiable instrument is a document or instrument embodying, or constituting the title to, a debt or other chose in action, and differing from ordinary choses in action in the following material respects, i.€., (1) the debt or chose in action to which it relates can be validly assigned by the mere delivery of the instrument accompanied, in certain cases, by indorsement; (2) no notice to the debtor of the assignment is required to entitle the assignee of the instrument to sue upon it(0); (3) a bonâ fide assignee for value, without notice of any defect in or equity affecting his assignor's title, gets an absolute title free from all defects and equities--in other words, he may get a better title than the assignor himself had ; (4) the assignee can and always could, quite apart from the Judicature Act, 1873, sue upon the instrument in his own name (p).
(j) Mayv. Lane (1894), 64 L. J. Q.B. 237; King v. Victoria Insurance Co.,  A. C. 250 ; Jones v. Humphreys,  1 K. B. 10.
(k) Harding v. Harding (1886), 17 Q. B. D. 442, and see note (d), p. 174, ante.
(9) Dibb v. Walker,  2 Ch. 429 ; Marchant v. Morton,  2 K. B. 829.
(m) Re Jones,  2 Ch. 203 ; Walker v. Bradford Old Bank (1884), 12 Q. B. D. 511, 517.
(n) Palmer v. Culrerwell (1902), 85 L. T. 758.
(o) Bence v. Shearman, [1898) 2 Ch. 582.
(p) See generally, London Joint Stock Bank v. Simmons, [1892) 2 A. C. 201.
Negotiable instruments can only arise in one of two ways, i.e., (1) by statute, or (2) by custom of merchants. It would appear that such custom need not be ancient, so long as it has in fact by usage become well established (1). Express agreement is not sufficient to make an instrument “ negotiable,” though it may give rise to an estoppel which would prevent the party issuing it, and liable under it, from disputing the title of a bonâ fide holder for value (j'). *100 alle kante .
There are many instruments which by mercantile custom have now become recognised as “ negotiable," e.g., bills of exchange and cheques (now governed by the Bills of Exchange Act, 1882) ; exchequer bills in blank ; India bonds ; foreign or colonial government scrip bonds and stock payable to bearer ; share warrants of a limited company (probably); certain railway bonds to bearer ; cedula bonds; and bankers' circular drafts (8). Debentures issued by a company may, it would also appear, become negotiable by custom (t).
Particular kinds of debts.—It is desirable, before concluding this section, to consider certain special classes of debts. In general, whenever a contract is such as to give one of the parties a right to receive a liquidated sum of money from the other-as in the case of a bond for payment of money, or an implied promise to pay for goods supplied so much as they shall be reasonably worth,-a debt is said to exist between these parties. But if the demand be of an uncertain amount,-as where an action is brought against a bailee, for injury done, through his negligence, to
the article committed to his care, -it is described, not as a debt, but as a claim for damages (u). As debts may thus arise out of contracts, and the contracts may be either specialty contracts or simple contracts, so the debts resulting therefrom are denominated either specialty delts or simple contract debts. Debts may arise, however, not only by deed or simple contract, but also by matter of record ; and in that case, they receive the designation of debts of record, and include judgment debts, debts due upon a statute merchant or statute staple (now obsolete) and recognizances. With regard to recognizances, we may here observe that they are obligations of record, entered into before some court or magistrate duly authorised, whereby the party bound acknowledges that he owes to the Crown or (as the case may be) to a private plaintiff, a certain sum of money, with condition to be void if he shall do some particular act, -as if he shall appear at the assizes, keep the peace, pay a certain debt, or the like (r). Recognizances, when forfeited, are said to be estreated (that is, extracted or taken out from among the other records). Usually they are sent up to the Exchequer, to be enforced ; but if ordered to be estreated by a court of quarter sessions, or of gaol delivery, then they are levied by the sheriff, and returned by the clerk of the peace to the Lords of the Treasury. Judgment debts are the most usual species of debts of record. When any sum is, in an action in any court of record, adjudged to be due from one party to the other, whether that sum was originally liquidated so as to constitute a debt between them, or was fixed and ascertained for the first time by the verdict of a jury or by the assessment of the judge himself, the claim having been originally in the nature of damages, it is said to be a judgment debt, and a debt of record,
Debts may also result otherwise than from contracts and judgments; for if, by Act of Parliament, a penalty is annexed to some particular offence, and is made recoverable by the informer, any person committing the offence becomes indebted in the amount of the penalty to the informer, so soon as the information is laid. Again, a man who has never contracted at all to pay a rentcharge issuing out of land, may become liable therefor as for a debt, by reason of his having taken and enjoyed the land ont of which the rentcharge issues (y).
ly) Thomas v. Sylvester (1873), L. R. 8 Q. B. 368 ; Starle v. Cooke (1890), 43 Ch. D, 519.
CHAPTER V.-SECTION XIII.
OF BILLS OF SALE.
The subject of Bills of Sale has already been briefly referred to (a), but it is of such importance and complexity, that it has been thought advisable to deal with it separately in detail.
What are Bills of Sale.—The term “ Bill of Sale,” in its widest sense, really comprises any instrument in writing constituting a document of title to goods sold. Thus, the document of transfer of a British ship, required to be registered under the Merchant Shipping Act, 1894, is known as a “bill of sale."
In modern times, however, the expression is commonly used to indicate assurances within the scope of the Bills of Sale Acts, 1878, 1882, 1890 and 1891. In this sense, a “ bill of sale” may be shortly defined as a document evidencing a sale or mortgage of personal chattels, unaccompanied by any actual transfer of possession of the chattels to the purchaser or mortgagee. The policy of the Acts above mentioned is, by means of a system of compulsory registration, to protect the rights of creditors against secret assignments of chattels, of which the assignor remains in the apparent possession (1).
Bills of sale, within the meaning of the Acts, are of two kinds, i.e., First, absolute bills of_sale in cases where chattels are absolutely sold to a purchaser, and Secondly, bills of sale by way of security in cases where chattels are