21. Many persons when they see that a Bank note is transferred from hand to hand like a piece of money, might think that any other Debt might be sold or transferred with equal facility. Nevertheless there is considerable subtlety about the sale of Debts, or Rights of action, and it was only on November 1, 1875, that it became legal in England for a Creditor to sell his Debt without the consent of his Debtor, so as to enable the Transferee to sue in his own name. We will give a short sketch of the rise and progress of the power of selling Debts.

Property is of two kinds -

1. Property in a specific chattel (jus in re) without being related to any one else, called also Dominium. When a person has such a sole and exclusive Right in a thing he may sell or transfer it to any one else, in any way he pleases. Money is subject to this sort of Property: and hence a man may freely sell and transfer his own money, or any other chattel.

2. Property held in Contract or Obligation (jus in personam); where a person has a Right, but in connection with, or relation to, some one else.

But Property held in Contract is of two kinds - (a.) Where each party has Rights to receive and Duties to perform: such as the Nexum, or Obligation, between Lord and Vassal in feudal law: or that between Master and Servant at the present time. This is termed a Bilateral, or Synallagmatic, Contract.

(b.) Where there is only a Right to receive on one side and a Duty to perform on the other: such as the relation between

Creditor and Debtor, or Landlord and Tenant in modern times. This is called a Unilateral Contract.

Now, formerly it was held universally that wherever Property was held in Contract of either sort, neither party could substitute another person for himself, at his own will and pleasure, and without the consent of the other party to the contract.

This rule must manifestly hold good in all Bilateral Con-tracts: because, as each side has a Duty to perform, of course the person who has that Duty to perform, cannot substitute any one else to perform it, without the consent of the other party.

Thus so long as the feudal law retained its pristine rigour, neither the Lord nor the Vassal could substitute any one else for himself without the consent of the other party. So in the case of Master and Servant at the present day: a master cannot transfer his household to any one else without their own consent, as if they were cattle or slaves. Neither can a servant substitute any one else in his place without his master's consent.

The same principle originally held good when the Contract was unilateral, as in the case of Creditor and Debtor. The Creditor could not transfer his Right of action against the Debtor, because the Debtor never agreed to pay any one except his own Creditor. It is a rule of law and of common sense, that no man can contract for another without his consent. Unless, therefore, the Debtor had agreed with the Creditor that he might transfer his Eight, the Creditor had no power to guarantee his Transferee that the Debtor would pay him.

But, nevertheless, though this may be true in theory, the party in an Obligation of this form who has the Right to demand soon begins to insist upon the power of transferring this Right, like any other Property. And there is a very good reason for this. For in the Obligation, or Contract, of Debt, there is manifestly a strong distinction between the two parties, the Creditor and the Debtor. The Debtor cannot substitute another Debtor for himself, because the Creditor may not have the means of knowing the solvency of the substituted Debtor. Therefore by the very nature of things, the consent of the Creditor is indispensable to the substitution of a new Debtor. As for instance no one can compel his Creditor to take payment of a Debt in the notes of a country banker. But the case of the Creditor is different. If a person really owes a debt and has the means of paying it, it cannot make the slightest difference to him, whether he pays it to A or to B, provided he can get a discharge for it, and is not called upon to pay it twice over. Hence it is evident that whilst the assignment of a new Debtor might seriously prejudice the Creditor, the assignment of a new Creditor can be no real prejudice to the Debtor.

The Romans did not till a very late period adopt the practice of recording the evidence of Debts in written documents, the delivery of which is equivalent to the delivery or transfer of the Credit itself.

Accordingly if the transfer of a Debt was to take place it was necessary for the three parties the Creditor, the Debtor and the Transferee to meet together, and then they agreed before witnesses that the Creditor might transfer his Right against the Debtor to the Transferee. When this was done the Creditor was discharged from his Debt to the Transferee, and at the same time he discharged the Debtor from his debt to him. The contract established between the Transferee and the original Debtor was termed a Novatio, and the assignment of the Debtor to the Transferee as a new Creditor was termed Delegatio. When this transaction was completed the Transferee might sue the Debtor in his own name, as there was now a privity of contract between them.

But the Creditor could not transfer his Debt to any one else without the consent of the Debtor, because he could not undertake that the Debtor should pay it.

In early Roman times no one could sue as attorney for another. But in process of time this rule was relaxed, and parties were allowed to be represented by attorneys. The Transferee of a Debt was then allowed to sue as the attorney of the Transferor.

But in the year 224 a.d. the necessity for this formality was abolished and by a Constitution of the Emperor Alexander Severus, the absolute freedom of the sale of Debts without the knowledge and consent of the Debtor was recognised and allowed. And since that time a Debt was as freely saleable as any other chattel by the general Mercantile Law of all Europe.

This clears up an obscurity about the law of Bills of Exchange. It has sometimes been doubted when Bills of Exchange were made transferable, as there are no words of transferability in the earliest specimens of bills which remain. But the fact is that they required no words of transferability; they were so by the general law of the Roman Empire.

The rule of the Common Law of England with respect to the transfer of Debts was exactly the same as that of Rome. A Creditor could not transfer his Right to any one else so as to enable the Transferee to sue the Debtor in his own name, without the consent of the Debtor. But if the parties met and agreed to the transfer of the Debt, then the Transferee might sue the Debtor because there was a privity of contract between them. It was also held in a series of decisions extending from the reign of Edward III. to William III. that if a Debtor, or Obligor, gave a written instrument made transferable to assignees, then that the Creditor might transfer this instrument to any one else, and that the Assignee might sue the Debtor in his own name.

If, however, the Creditor transferred his Right without the consent of the Debtor the Transferee could not sue in his own name, but he might sue in the name of the Transferor.

Equity however adopting the law of the Pandects of Justinian always allowed the Creditor to transfer his Right to any one else, and would compel the Transferor to allow the Transferee to sue in his own name; or if that was not possible for any reason, it would allow the Transferee to sue in his own name.

Such was the state of the Law until the passing of the Supreme Court of Judicature Act in 1873, which enacted that from the date of the Act taking effect, the Rules of Equity should prevail over the Rules of Common Law wherever they conflict. This Act came into operation on the 1st November, 1875; on which day the sale of Debts became absolutely free in England, and thus the Law of England is now the same as has been the Law of all Europe since the Constitution of Alexander Severus in 224 a.d.