cases of sale, assignment, and transfer generally, where there has been no such manifest delivery of the property or transferred possession as might suffice to put third parties on their guard. Such statutes have accordingly a special reference to the assignment of money rights or incorporeal property; they insist upon a writing (with perhaps witnesses or an acknowledgment), and the assignment under American policy should be recorded.1 The general policy of such statutes is to protect subsequent purchasers and incumbrancers without notice, without necessarily disturbing the rights of the original parties to the transaction as between themselves.

§ 83. Negotiable Instruments excepted from the Old Rule of Assignment. To the old rule which makes the assignment of incorporeal chattels personal, or things in the nature of a chose in action, ineffectual at law, or at least ineffectual without a power of attorney to enable the assignee to sue, negotiable instruments always constituted an exception. These are, most commonly, bills of exchange, promissory notes, and bank checks.

It is of the essence of a negotiable instrument that the legal right to that which is evidenced by it, and the right of action on it in case of a default, are transferable from one person to another, so as to enable the latter to sue upon it in his own name. Bills, notes, and checks are negotiable to an ample extent; they may pass from hand to hand by delivery, with or without indorsement, as the case may require; and the transfer vests in the bona fide transferee a right of action in his own name on the instrument assigned.3 A formal holder for value of a bill or note will not be affected by intermediate fraud or infirmity of title, of which he had

1 See, e.g., Browning v. Parker, 17 R. I. 183; 30 Fed. 653; 62 N. H. 43; Burck v. Taylor, 152 U. S. 634. A recorded assignment which conforms to statute takes precedence of an unrecorded one of earlier date. 83 Me. 286. But an unrecorded assignment might be good as between the parties. 82 Me. 412. And perhaps, too, as against those affected with season

able notice of such assignment. An informal writing might be supported between the parties as an equitable assignment. 62 Mich. 235; § 77; Moeser v. Schneider, 158 Penn. St. 412.

2 Supra, § 72.

8 See 2 Pars. Bills & Notes, 279; Smith Merc. Law, 202; Wms. Pers. Prop. 5th Eng. ed. 112, 365.

no prior notice sufficient to put him on his guard, provided that he took the instrument before it became due, and in good faith. But if this holder took the bill or note, being aware at the time of circumstances which rendered it improper that payment should be enforced, he has no better interest than that of the person who transferred it to him.2 And the rule in case of transfer of an overdue bill or note is, that the holder takes it subject to existing equities.3

§ 84. Indorsement as distinguished from Assignment. - Negotiable paper follows the rule of indorsement where applicable rather than that of assignment; though a strict comparison will show that our modern assignments are often hastily made after the fashion of indorsing over, as though the thing were negotiable; the usual effect being to authorize a formal assignment to be written on the back over the assignor's name.5

Indorsement in fact, is a quality pertaining to bills, notes, and other negotiable instruments, and, in strictness, to none other. One who means to transfer his title in any chattel of this class, expressed to be payable to himself or order, writes his name on the back of it before delivering the instrument, mainly with the intent of passing over his title in the chattel to the fullest extent; though a natural consequence would be to subject him to the liability of paying off the debt according to the tenor of the writing, in a certain contingency, as security for the party primarily liable."

To use the mercantile phrases, an indorsement may be in blank, or where the indorser writes his own name simply, and thus gives his liability the widest range. It may be in full, or where he names the party to whom he indorses, and thus obliges the latter to sign, in turn, upon any new transfer; which might also be termed one sort of restrictive indorsement. It may be restrictive or qualified, even to the

11 Pars. Bills & Notes, 183, 184, 257, 278; Byles on Bills, 5th Am. ed. 34, 125, 127, 128, 158.

2 Ib.

32 Pars. Bills & Notes, 603, 604. See also 3 Kent Com. 75-128; and c. post, on Bills and Notes.

4 See Harris v. Clark, 3 Comst. 115; 49 Barb. 221; Cushman v. Haynes, 20

Pick. 132.

5 Supra, §§ 78, 81.

See c. post, on Bills and Notes.

extent of clearing himself of all legal liability as indorser, and merely for the purpose of conferring his title; as where he indorses "without recourse." On the other hand, one party may put his name upon the back of another man's negotiable paper, not primarily to enable the instrument to be formally transferred, but for the purpose of lending his name as security, so that the other may raise money upon it elsewhere; in which case the indorser, if receiving no consideration, but signing as a favor, stands with the qualified liability of accommodation indorser.

A negotiable instrument, when indorsed in blank or payable to bearer, has the negotiable character; but such instruments may for the time be deprived of their negotiable character. 1

§ 85. Various Classes of Negotiable Instruments considered. There are various instruments which are salable by mercantile usage, in much the same manner as a bill or note, and yet are not, properly speaking, negotiable; since they must be sued in the name of the original assignor. A bill of lading has sometimes been considered negotiable, for instance; since, by indorsement and delivery, it passes the property in the goods to the indorsee, subject to the right of the unpaid vendor to stop in transitu. But the better opinion is, that such a bill is only quasi negotiable, and the effect of indorsement is to transfer the property in the goods only, and not the right upon the contract itself; and generally, independent of local practice acts, the action cannot be maintained in the assignee's name.2 Bank checks, though very much like bills of exchange in form, are not so to all intents; still they are negotiable in the fullest sense. Coupon bonds, a new species of incorporeal chattels personal, which consist in bonds payable to bearer (usually under a corporate seal), and which for the most part have coupons or interest warrants annexed, are by late decisions put substan

1 See c. post, on Bills and Notes. 21 Pars. Contr. 289; 2 Kent Com. 549, n.; 1 Am. Lead. Cas. 5th ed. 40 et seq.

3 Merchants' Bank v. State Bank,

10 Wall. 647; 1 Am. Lead. Cas. 5th ed. 407. A check is not an assignment of money in the hands of a banker. Hopkinson v. Forster, L. R. 19 Eq. 74.

tially on the general footing of negotiable paper, with the same qualities and incidents.1 And the same thing has been declared true of the coupons or interest warrants themselves, detached from the bonds, if such coupons or warrants be in words negotiable. To no other species of property than the foregoing can the term negotiable at this day be strictly applied; though upon various instruments, such as bills of lading, the local statute will be found to confer some of the advantageous incidents of negotiability.3

§ 86. General Conclusion as to Assignment, etc.; Civil-Law Rule. The reader has thus perceived that, with the progress of modern civilization, and the growing wants of trade and commerce, the old common-law objection to the assignment of rights in the nature of a chose in action has come at last to amount to little more than a standing requirement that the assignee shall make use of the original assignor's name in bringing his suit on the thing assigned; and that even this is obviated to a considerable extent in equity proceedings, and in courts of law under local statutes; while in the case of negotiable instruments it is dispensed with altogether. The public policy which discouraged assignments of this character per se was a narrow and illiberal one. And in the civil law, as well as in the jurisprudence of the modern commercial countries of continental Europe, an opposite policy appears to have prevailed; for all debts were from an early period allowed to be assigned under the civil law system, if not formally, at least in legal effect; while for the most part, if not in all cases, they may now be sued for in the name of the assignee.+

§ 87. As to Delivery; Chattels Corporeal and Incorporeal. Next, as to the absolute transfer by way of gift or sale of personal property, there is a distinction observable between

1 Murray v. Lardner, 2 Wall. 110; Morris Canal v. Fisher, 1 Stockt. 700; Johnson v. County, 24 Ill. 92; Clark v. City of Janesville, 10 Wis. 136; 1 Am. Lead. Cas. 5th ed. 408; In re Imperial Land, &c. Co., L. R. 11 Eq. 478.

2 Thomson v. Lee County, 3 Wall. 330.

8 §§ 321, 471.

4 Cod. lib. 8, tit. 42, l. 1; 1 Domat, book 4, tit. 4, §§ 3, 4; Pothier on Sales, by Cushing, n. 550, 555-559; Story Eq. Jur. § 1040 b.

personal chattels corporeal and those incorporeal, which has been in a measure anticipated by what we have just said in reference to their assignment. This is not a suitable place for elaborating those important principles of law which relate to the gift or sale or to the transfer generally of personal property. But we may notice in brief that delivery of the thing sold, in whole or in part, is an important element in every sale; and that, in cash sales, payment of the price by the buyer, and delivery of the goods by the seller, are immediate and concurrent acts which complete the transaction.2 And a gift of personal chattels, to be effectual, should in general be accompanied by delivery of possession, whether the gift be one inter vivos or causa mortis. Now the delivery of a corporeal chattel personal must be very different from that of a purely incorporeal chattel; for in the one case you can make a manual delivery of the thing, or what is equivalent to it; while in the other case, which is, strictly speaking, that of an invisible intangible thing, a manual delivery would be impossible. But the rule applicable to incorporeal chattels personal, or choses in action, is that, so far as the thing can be transferred at all (a subject which we considered incidentally while treating of assignments), such a delivery as the thing will admit of a symbolical delivery is admitted as the substitute for a manual delivery. Hence, where the thing sold is a bill of exchange, the bill should be delivered; where it is a policy of insurance, there should be delivery of the policy; where it is stock, of the old certificate as preliminary to the issue of a new one; where it is a bond, of the bond itself; and so on. And in general the written instrument which is evidence of the debt or money right should, if there be one, be delivered when that debt or right is sold. The rule of symbolical delivery is sometimes applied to corporeal chattels likewise, in cases

1 Gifts and sales are treated at length in vol. ii. of this work.

22 Kent Com. 496, and n.; Smith Merc. Law, 461, 472, 5th ed.; vol. ii. post.

82 Kent Com. 438; Wms. Pers. Prop. 5th Eng. ed. 34; vol. ii. post.

4 See supra, §§ 72, 77; Civil Code La., arts. 2456, 2612.