1776.
usual course, having taken out the first writ, and delivered it as soon as was usual, his writ should take preference; and the Court accordingly order the return to be made on the Habeas Corpus.
Wheeler Assignee of Baynton vers. Hughes Ex.
John Hughes, the 16th of February 1763, gave his bond to John Baynton, conditioned for the payment of one thousand pounds. On the 3d September, 1764, John Baynton and Samuel Wharton, became bound jointly and severally, to John Hughes in a bond conditioned for the payment of six hundred and eight pounds fifteen shillings. On the 8th of May 1765, John Baynton, assigned the one thousand pound bond to the plaintiff, Ann Wheeler, for a just debt, she being ignorant of any dealing, between Hughes and Baynton. The action was brought on the assigned bond; the defendant pleaded payment, and offered in evidence the bond dated in September, in bar of the plaintiff’s recovery. To this the council for the plaintiff objected, and this day, viz. 23d April, the cause came to be argued.
The Council for the Plaintiff contended, that by the[1] act of assembly, bonds, bills and notes were negotiable, as promissory notes in England under the 3 and 4 Ann. cap. 9; that negotiability imported a currency from hand to hand; that this act of assembly was formed on the plan of the statue, in many places using the same words, and being made for the same purpose, viz. to encourage trade and commerce, which could only be effected by such a construction, and that an assigned bond should have a currency, from hand to hand, and that the possessor should recover, independent of any contracts or dealings between the obligor and obligee; that the clause in the act of assembly, "Should commence and prosecute his, her, or their actions at law, for the recovery of the money mentioned in such bonds or notes, or so much thereof, as shall appear to be due at the time of such assignment," meant as shall appear on the face of the instrument itself—That, for this reason, the obligator should either guard, in making the contract, by leaving out the negotiable words, or should get his payments indorsed on the bonds; that the words, "To recover as the person or persons to whom the same was or were made payable," only referred to the mode of recovery, where the assigned brought his action in his own name, as he might under his act; that any other construction would defeat the intention of the act, which was to encourage trade and commerce; but if the assignee was to take the bond subject to the dealing between the obligor and obligee, there was an end of this species of traffick, as no one would ever take an assigned bond in the course of trade, or in any other case, but of a doubtful or desperate debt.
To shew that a third person, coming in bona fide, and for a valuable consideration, would be in a better situation than his vendor, thefollowing
- ↑ 1 Geo. 1. c. 8. See 1 State Laws. 77.
