A debt of record is a sum of money which appears to be due by the evidence of a court of record. (114) Thus, when any specific sum is adjudged to be due from the defendant to the plaintiff, on an action or suit at law, this is a contract of the highest nature, being established by the sentence of a court

subsequent simple contract, nor can the party be discharged or released from the obligation of a deed by any subsequent contract, unless by a release under seal. Co. Litt. 222, b. 3 T. R. 590. 8 East, 346. 5thly. That a deed binds the heir when named, (Bac. Abr. Heir and Ancestor, F. 2 Saund. 7, n. 4, 136. Plowd. 439, 441,) and a devisee of real estate may be sued in debt, though not in covenant, on such a deed, (3 & 4 W. and M. c. 14. Bac. Abr. Heir, F. I P. Wms. 99. 7 East, 128;) whereas a simple contractcreditor has no remedy at law in any case against the real estate of his deceased debtor, though in some cases, by marshalling the assets, (3 Wooddes. 488,) or where the debtor died a trader, relief may be obtained in equity. 47 Geo. III. sess. 2, c. 74. 6thly. That a deed is entitled to preference, except as to rent due on a parol demise, over simple contract debts, in the course of payment of a testator's debts, (supra, 465. Toller, 1st ed. 221. 5 T. R. 307;) and though this rule does not obtain in case of bankruptcy, where all creditors receive a dividend pari passu [Equally], yet, by means of a mortgage and some other deeds, some specific security may frequently be obtained, or right to prove acquired, which even in that event places one creditor in a better situation than he would otherwise have been. 7thly. That a deed is not affected by the statute of limitations, which renders it necessary for a simple contract creditor to proceed within six years after his cause of action accrued. Cowp. 109. I Saund. 37, 38. 21 Jac. I. c. 16. Tidd, 6th edit. 19. 8thly. That in pleading a deed it is in general necessary to make a profert, as it is technically termed, of the deed, or to state upon the record some excuse for the omission. IO CO. 92, b. I Chitty's Plead. 351. 3 T. R. 151. 4 East, 585. 9thly. That in case of a deed when a profert is necessary, the other party is entitled to oyer and copy, (1 Saund. 9, n. 1;) a right which does not in general exist in case of simple contracts. Tidd, 6th edit. 618, 619. 1othly. That if a deed be given expressly to secure a pre-existing simple contract debt due from the obligor, it will at law merge the latter, and prevent him from suing upon the same, (3 East, 258, 259. Cro. Car. 415:) though if the deed be given as a collateral security or by a third party, it will not have that operation. 3 East, 251. Com. Dig. Accord. 6 Term. Rep. 176, 177. 2 Leon. 110.

Debts or contracts of record, being, as we have seen, sanctioned in their creation by some court or magistrate having competent jurisdiction, have certain particular properties distinguishing them as well from simple contracts as from specialties. Ist. These debts or contracts cannot in pleading be impeached or affected by any supposed defect or illegality in the transaction on which they are founded; and if a judgment be erroneous, that circumstance will afford no answer to an action of debt upon it, and the only course for the defendant is to reverse it by writ of error, (2 Burr. 1005. 4 East, 311. 2 Lev. 161. Gilb. on U. & T. 109. Gilb. Debt. 412. Yelv. 155. Tidd, 6th ed. 1152;) and though third persons, who have been defrauded by a collusive judgment, may show such fraud, so as to prevent themselves from being prejudiced by it, (13 Eliz. c. 5. 2 Marsh. 392. 7 Taunt. 97,) the parties to such judgment are estopped at law from pleading such a plea, and must in general apply for relief to a court of equity. 13 Eliz. c. 5. 2 Marsh. 392. 7 Taunt. 97. I Anstr. 8. There is, however, one instance in which a party may apply to the common-law court to set the judgment aside,--viz., where it has been signed upon a warrant of attorney given upon an unlawful consideration or obtained by fraud; in which case, as this is a peculiar instrument, affording the defendant no opportunity to resist the claim by pleading, and frequently given by persons in distressed circumstances, the court will afford relief upon a summary application. Doug. 196. Cowp. 727. I Hen. Bla. 75. Semble; not so in Exchequer. i Anstr. 7, 8. Another peculiar property of a contract of record is that its existence, if disputed, must be tried by inspection of the record, entry of recognizance, etc., and not by a jury of the country. Tidd, 6th edit. 797, 798. But notwithstanding, since the act of union, an Irish judgment is a record, yet it is only provable by an examined copy on oath; and therefore it is only triable by a jury. 5 East, 473. Another quality, and one of the most important, is that a judgment when docketted binds the land as against subsequent purchasers, (Tidd, 6th edit. 966, 967;) and such a judgment and recognizance is entitled to preference to a specialty and other debts of an inferior nature. 6 T. R. 384.-Tidd, 6th edit. 967. Lastly, if a judgment be obtained expressly for a simple contract or specialty debt, and not as a collateral security, the inferior demand is merged, according to the rule transit in rem judicatam [It passes into matter adjudged]: but if the judgment were obtained merely as a collateral security, the creditor retains an election to proceed either on the judgment or inferior security. 3 East, 258.-CHITTY.

(114) Williams on Pers. Prop. (4 ed.) 96. Bateman on Com. Law, 189.

of judicature. (115) Debts upon recognizance are also a sum of money, recognized or acknowledged to be due to the crown or a subject, in the presence of some court or magistrate, with a condition that such acknowledgment shall be void upon the appearance of the party, his good behavior, or the like: and these, together with statutes merchant and statutes staple, etc., if forfeited by non-performance of the condition, are also ranked among this first and principal class of debts, viz., debts of record; since the contract, on which they are founded, is witnessed by the highest kind of evidence, viz., by matter of record. (116)

Debts by specialty, or special contract, are such whereby a sum of money becomes, or is acknowledged to be, due by deed or instrument under seal. (117) Such as by deed of covenant, by deed of sale, by lease reserving rent, or by bond or obligation; which last we took occasion to explain in the twentieth chapter of the present book; and then showed that it is a creation or acknowledgment of a debt from the obligor to the obligee, unless the obligor performs a condition thereunto usually annexed, as the payment of rent, or money borrowed, the observance of a covenant, and the like; on failure of which the bond becomes forfeited and the debt becomes due in law. These are looked upon as the next class of debts after those of record, being confirmed by special evidence, under seal.

Debts by simple contract are such, where the contract upon which the obligation arises is neither ascertained by matter of record, nor yet by deed or special instrument, but by mere oral evidence, the most simple of any;

(115) By section 3716 of the Political Code of California "every tax has the effect of a judgment against the person, and every lien created by this title has the force and effect of an execution duly levied against all the property of the delinquent; the judgment is not satisfied nor the lien removed until the taxes are paid or the property sold for the payment thereof." San Francisco Gas Co. v. Brickwedel, 62 Cal. 641, 646 (1882).

Burnes v. Simpson, 9 Kans 658, 664 (1873). Carver v. Braintree Manuf. Co., 5 Fed. Cases p. 241, No. 2485. Bank of St. Mary's v. The State, 12 Ga. 475, 486 (1853). Cox v. Harris, 48 Ala. 538, 539 (1872). The words "a specialty or any agreement, contract, or promise in writing," in the Indiana statute of limitations does not embrace a judgment. Kimball v. Whitney, 15 Ind. 280, 283 (1860). Judgments are contracts within the meaning of the statute of Wisconsin, which declares that actions upon contracts, express or implied, may be joined in the same action. Freeland v. Williams, 131 U. S. 405, 425 (1889). Childs et al. v. The Harris Manuf. Co., 68 Wis. 231, 233 (1887). Hammon & Hathaway v. Smith, 1 Brevard (S. C.) 110, 113 (1802). Pratt v. Dow, 56 Me. 81, 88 (1868).

The Illinois statute of 1823, as to distribution of estates, provided where there was not a sufficiency to pay all the debts of the deceased, "that executors, etc., shall then pay the balance on the legal demands, in equal proportions, according to their amount without regard to the nature of said demand, not giving preference to any debts on account of the instrument of writing on which the same may be found." Speaking of this statute the court said: "A judgment is a demand, but it is not a demand evidenced by an instrument of writing as contemplated by the statute. It is a debt of record created by operation of law in which the original demand, whether evidenced by oral testimony or specialty, is merged. At common law debts were to be paid by executors, etc., according to their dignity. The statute was intended to establish a more equitable rule, and, without taking from the judgment creditor the fruits of his diligence, required other debts to be paid pro rata regardless of the kind of testimony by which they were to be established." Woodworth v. Paine's Admr's, Breese (Ill.) Rep. 374, 376 (1839.)

(116) Williams on Pers. Prop. (4 ed.) 105. People v. Kane, 4 Denio (N. Y.) 530, 537 (1847). Leake's Law of Contracts (3 ed.) 132.

(117) Davis v. Smith, 5 Ga. 274, 285 (1848). Probate Court v. Child et al. 51 Vt. 82, 86 (1878). 2 Whart. on Cont. (1882) 59. I Story on Cont. (5 ed.) 3. Story on Bills of Exchange (4 ed.) 17. Conine v. Junction & Breakwater R. R. Co., 3 Houst. (Del.) 288, 301 (1866). Bateman v. Com. Law, 190.

A non-negotiable note given subsequent to the Act of Bankruptcy of September 16, 1765, in payment of a debt contracted prior to the passage of said act by the General Assembly of Pennsylvania, will not entitle the holder to a commission of bankruptcy against the maker. Lessee of Joy et al. assignee, etc. v. Cassart, 1 Yates 50, 54 (1791).

or by notes *unsealed, which are capable of a more easy proof, and [*466 (therefore only) better, than a verbal promise. (118) It is easy to see into what a vast variety of obligations this last class may be branched out, through the numerous contracts for money, which are not only expressed by the parties, but virtually implied in law. Some of these we have already occasionally hinted at; and the rest, to avoid repetition, must be referred to those particular heads in the third book of these commentaries, where the breach of such contracts will be considered. I shall only observe at present, that by the statute 29 Car. II. c. 3, no executor or administrator shall be charged upon any special promise to answer damages out of his own estate, and no person shall be charged upon any promise to answer for the debt or default of another, or upon any agreement in consideration of marriage, or upon any contract or sale of any real estate, or upon any agreement that is not to be performed within one year from the making; unless the agreement or some memorandum thereof be in a writing, and signed by the party himself, or by his authority. (119)

But there is one species of debts upon simple contract, which, being a transaction now introduced into all sorts of civil life, under the name of paper credit, deserves a more particular regard. These are debts by bills of exchange, and promissory notes.

A bill of exchange is a security, originally invented among merchants in different countries, for the more easy remittance of money from the one to the other, which has since spread itself into almost all pecuniary transactions. It is an open letter of request from one man to another, desiring him to pay a sum named therein to a third person on his account; by which means a man at the most distant part of the world may have money remitted to him from any trading country. (119) If A. lives in Jamaica, and owes B., who lives in England, 1000l., now if C. be going from England to Jamaica, he may pay B. this 1000l., and take a bill of exchange drawn by B. in England upon A. in Jamaica, and receive it when he comes hither. Thus does B. receive his debt, at any distance of place, by transferring it to C.; who carries over his money in paper credit, without danger of [*467 robbery or loss. (120) This method is said to have been brought into general use by the Jews and Lombards, when banished for their usury and other vices; in order the more easily to draw their effects out of France and England into those countries in which they had chosen to reside. But the invention of it was a little earlier; for the Jews were banished out of Guienne in 1287, and out of England in 1290;(r) and in 1236 the use of paper credit was introduced into the Mogul empire in China. (s) (121) In common speech such a bill is frequently called a draft; but a bill of exchange is the more legal as well as mercantile expression. (122) The person, however, who writes

(r) 2 Carte. Hist. Eng. 203, 206.

(118) Bateman on Com. Law, 191, 192.

(8) Mod. Un. Hist. iv. 499.

(119) Edwards on Bills, Notes and Negot. Insts. (3 ed.) 288. Id. 151.

(119) Bateman on Com. Law, 192.

(120) Henderson v. Pope, 39 Ga. 361, 363 (1869). Bills of exchange, bonds for the payment of money, and promissory notes are, in the popular acceptation of the term, "securities" for money. Jennings v. Davis, 31 Conn. 134, 139 (1862). Leidy v. Tammany, 9 Watts (Pa.) 353, 358 (1840). I Dan. Neg. Inst. (3 ed.) 6, 35. Edwards on Bills, Notes & Negot. Insts. (3 ed.) 2. Gilpin, C. J., in Conine v. Junction & Breakwater R. R. Co., 3 Houst. (Del.) 288, 300 (1866), says, "Bills of exchange find their origin and sanction in the usage and custom of merchants, the lex mercatoria, a particular or peculiar system, which, being in the interests of commerce, became at length gradually ingrafted into and established as a part of the common law itself." (121) Story on Bills (4 ed.) 8. I Dan, on Neg. Inst. (3 ed.) 5.

(122) Ibid. 14. Binn's Justice Brightley (10 ed.) 79. Biery v. Haines, 5 Whart.

this letter is called in law the drawer, and he to whom it is written the drawee; and the third person, or negotiator, to whom it is payable, (whether especially named, or the bearer generally,) is called the payee.

These bills are either foreign, or inland; foreign, when drawn by a merchant residing abroad upon his correspondent in England, or vice versa; (123) and inland, when both the drawer and the drawee reside within the kingdom. (124) Formerly foreign bills of exchange were much more regarded in the eye of the law than inland ones, as being thought of more public concern in the advancement of trade and commerce. But now, by two statutes, the one 9 & 10 W. III. c. 17, the other 3 & 4 Anne, c. 9, inland bills of exchange are put upon the same footing as foreign ones; (125) what was the law and custom of merchants with the regard to the one, and taken notice of merely as such, (f) being by those statutes expressly enacted with regard to the other. So that now there is not in law any manner of difference between them. (126)

Promissory notes, or notes of hand, are a plain and direct engagement, in writing, to pay a sum specified at the time therein limited to a person therein named, or sometimes to his order, or often to the bearer at large. (127) These also, by the same statute 3 & 4 Anne, c. 9, are made assignable and endorsable in like manner as bills of exchange. (128) But, by statute 15

(t) Roll. Abr. 6.

(Pa.) 563, 566 (1840). Holloway v. Porter, 46 Ind. 64 (1874). Byles on Bills, (13 Eng. ed.) 5. Story on Promissory Notes (7 ed.) 2, 5. No definition of a promissory note requires the use of the words value received. Carnwright v. Gray, 57 Hun. (N. Y.) 518, 522 (1890). No precise form of words is essential to the validity either of a bill of exchange or of a promissory note. Byles on Bills, 6, citing Chadwick v. Allen, Stra. 706. Peto v. Reynolds, 9 Exr. 410. Reynolds v. Peto, 11 Exr. 418. Negotiability is not an essential element in a promissory note of hand. Bates v. Butler, 46 Me. 387, 390 (1859).

(123) The different states which compose the United States are sovereign and independent and foreign to each other in all respects not provided for by the terms of the federal compact,—the constitution. Hence a bill drawn in one state upon a person residing or doing business in another has been invariably held to be a foreign bill of exchange. Buckner v. Finley, 2 Peters, 586. Phoenix Bank v. Hussey, 12 Pick. 483. Wells v. Whitehead, 15 Wend. 527. Rice v. Hogan, 8 Dana, 133. Brown v. Ferguson, 4 Leigh. 37. Carter v. Burley, 9 N. Hamp. 558.-SHARSWOOD. In a note to Offit v.

Vick Excr. etc., I Walk. (Miss.) 99, 104 (1821), the reporter calls attention to the fact that in this case the Court declined to decide whether a bill drawn in one state, upon a person residing in another state, was a foreign or inland bill of exchange, though infinitely the weight of authority to be in favor of its being an inland bill of exchange. The question was, however, settled by these later decisions above mentioned.

(124) Edwards on Bills, Note and Negot. Insts. (3 ed.) 7. Buckner v. Finley et al., 2 Pet. 586, 590 (1829). Story on Bills (4 ed.) 27.

(125) Story on Bills (4 ed.) 593.

(126) One very important distinction between foreign and inland bills of exchange still remains unaltered by the statutes,-viz., in a foreign bill, in order to recover against the drawer or endorsers, it is necessary that the bill should be protested for non-acceptance or non-payment, (5 T. R. 239;) but a protest is not necessary upon an inland bill to enable the holder to recover the amount of it against the drawer or endorsers; and the only advantage of a protest upon an inland bill is to give the holder a right to recover interest and expenses incurred by the non-acceptance or non-payment. Ld. Raym. 993. No inland bill, payable at or after sight, can be protested, or which is not drawn payable at some time after date. 4 T. R. 170.—CHRISTIAN. In re Brown, 4 Fed. Cases (B. & C.) 347 (1895).

(127) In Windle v. Andrews, 2 Barn. & Ald. 701, it was decided that although the endorsee of an inland bill of exchange has no remedy for interest under the statute of Anne, unless the bill has been regularly protested, still, that statute does not take away any remedy which the holder of a bill of exchange had previously; and the drawer of a bill of exchange which is not duly paid is liable at common law for interest, although no protest was made.-CHITTY.

(128) Dunlop v. Harris, 5 Call. (Va.) 16, 49 (1804).

Geo. III. c. 51, all promissory or other notes, *bills of exchange, [*468 drafts, and undertakings in writing, being negotiable or transferable,

for the payment of less than twenty shillings, are declared to be null and void; and it is made penal to utter or publish any such; they being deemed prejudicial to trade and public credit. And by 17 Geo. III. c. 30, all such notes, bills, drafts, and undertakings, to the amount of twenty shillings, and less than five pounds, are subjected to many other regulations and formalities; the omission of any one of which vacates the security, and is penal to him that utters it. (129)

The payee, we may observe, either of a bill of exchange or promissory note, has clearly a property vested in him (not indeed in possession, but in action) by the express contract of the drawer in the case of a promissory note, and, in the case of a bill of exchange, by his implied contract, viz., that, provided the drawee does not pay the bill, the drawer will: (130) for which reason it is usual in bills of exchange to express that the value thereof hath been received by the drawer: (u) in order to show the consideration upon which the implied contract of repayment arises. And this property, so vested, may be transferred and assigned from the payee to any other man; contrary to the general rule of the common law, that no chose in action is assignable: which assignment is the life of paper credit. (131) It may therefore be of some use to mention a few of the principal incidents attending this transfer or assignment in order to make it regular, and thereby to charge the drawer with the payment of the debt to other persons than those with whom he originally contracted. (132)

In the first place, then, the payee, or person to whom or whose order such bill of exchange or promissory note is payable, may by endorsement, or writing his name in dorso, or on the back of it, assign over his whole property to the bearer, or else to another person by name, either of whom is then called the endorsee; and he may assign the same to another, and so on in infinitum.(133) And a promissory note, payable to A. or bearer, is negotiable without any endorsement, and payment thereof may be demanded by any bearer *of it.(v)(134) But in case of a bill of exchange, [*469 the payee, or the endorsee, (whether it be a general or particular endorsement,) is to go to the drawee, and offer his bill for acceptance; which acceptance (so as to charge the drawer with costs) must be in writing, under or on the back of the bill. If the drawee accepts the bill, either verbally or in writing, (w) he then makes himself liable to pay it; this being now a contract on his side, grounded on an acknowledgment that the drawer has effects in his hands, or at least credit, sufficient to warrant the payment. If the drawee refuses to accept the bill, and it be of the value of 20l. or upwards, and expressed to be for value received, (135) the payee or endorsee may (u) Stra. 1212.

(v) 2 Show. 235. Grant v. Vaughan. T. 4 Geo.

II. B. R.
(w) Stra. 1000.

(129) By the statute of 7 Geo. IV. c. 6, the issuing of promissory notes for any sum under 57. is prohibited, under a penalty of 20/. for every such note issued.--CHITTY. (130) I Edwards on Bills, Notes and Negot. Insts. (3 ed.) 14.

(131) Broom's Parties to Actions, 20. 1 Edwards on Bills, Notes and Negot. Insts. (3 ed.) 288.

(132) Story on Bills (4 ed.) 20, 77.

(133) [Indefinitely.] Broom's Parties to Actions, 20.

(134) Bateman on Com. Law, 195.

(135) No authority is cited by the learned commentator for the qualification here expressed; and I have been unable to trace it. I can find no statute which confines a protest for non-acceptance to bills of the value of 20l. and upwards and expressed to be for value received. Bills for the payment of less than 20s. are void by statute 15 Geo. III. c. 51. I have supposed that this was a mistake of pounds for shillings; but every