1776.
following cases were cited: 1 Siderfin. 134. A. made a feoffment to B. by covin. B. makes a feoffment to D. for a valuable consideration and bona fide. The first feoffor enters and makes a feoffment for a valuable consideration–The feoffee of the first feoffee shall retain the land. Cro. Jac. 32. Debt on obligation for two hundred pounds; Defendant pleads the statute of usury, and shews that he was indebted to one Alder in one hundred pounds, and agreed with him that he should forbear him for a year in consideration of thirty pounds, and that he should make a bond to Alder for the payment of thirty pounds, and for payment of one hundred pounds. That then he and Alder entered into the bond for two hundred pounds. The plaintiff replied that Alder was justly indebted to him in one hundred pounds, and for payment thereof entered into this bond, that he was not knowing to any corrupt agreement between the defendant and Alder. The Court determined in favour of the plaintiff upon his being a fair and innocent creditor.–To shew that promissory notes in England, are not subject to any discount or sett off, between the promissor and promisee, the following cases were quoted. 1 Salk. 126. Bill lost; finder transfers it to C. for a valuable consideration—the original owner cannot bring trover against C. 1 Burrow. 459. S. P. 1 L. Raymond 738. 2 Burr. 675. 6. 1224. 1227.—2 Freeman 257. Bill Payable to A. or bearer, is like so much money paid to whomsoever the note is given; that let what discount, or conditions, soever, be between the party who gives the note, and he to whom it is given, yet it shall not affect the bearer.–3 Bacon. title. Merchant. Comyns 43. Marius 72. 3 Burrows 1523. 27. 29.
It was contended further by the plaintiff, that the act of assembly had changed the nature of these contracts; that they were not to be construed on commercial principles only; that the doctrine of the defendant established this principle, that it was nudum pactum, there was no consideration at the time of the bond being given or assigned. To which it was answered, that, judging on commercial principles, a want of consideration was no objection, for there is no such thing as nudum pactum in mercantile transactions. 3 Burr. 1669.—Plaintiff also denied defendant to be within the defalcation act.
The council for the defendant contended, that it was not the intention of the Legislature to make bonds negotiable here as promissory notes in England. They allowed the law as laid down in the above cases, but denied the application; insisting that they stood upon quite a different footing—That nothing more was meant by the act, than to give assignees the benefit of suing in their own names and preventing any release, or other dealings, affecting the assignee after assignment once made; that in England, a bond passes into the hands of an assignee subject to all the equity it had in the hands of the assignor, for which they quoted 6 Vern. 692. 675. 10 Mod. 445. 1 P. Wms. 83. 452. 459. That the construction, contended for by plaintiff, would open a door to numberless frauds; that a satisfied bond might be passed away, and the obligor compelled to pay it twice; that even a forged bond might pass in the samemanner;
