1788.
WATERS verʃus MILLAR.
O
N a motion in arreft of judgment after a verdict for the Plaintiff in this caufe, it appeared, that the Defendant had given his note of hand to one Jeʃʃerow, which was expreffed in thefe words:
“ I promife to pay, or caufe to be paid, unto George Jeʃʃerow, or
“ order, the full fum of Ł.20. againft or before the 27th day of
“ November, 1785.”− This note was afterwards fold and delivered, for a valuable confideration, by Jerʃʃerow to the Plaintiff, but without any indorfement or written affignment; and the Defendant having refufed to pay it, this action was inftituted, in which the declaration, after ftating the note &c. proceeded as follows:−
“And whereas the faid George afterwards, to wit, on the 4th day
“ of November, in the faid year, in the city and county aforefaid,
“ the faid Ł.20 being wholly unpaid, for a valuable confideration
“ to him by the faid Nicholas (Waters) then and there paid, bar-
“ gained and fold the faid promiffory note to the faid Nicholas, and
“ poffeffion thereof to him then and there delivered; and in con-
“fideration whereof the faid Jacob (Millar) afterwards, to wit,
“ the fame day and year laft aforefaid, at the city and county aforefaid,“ at the fpecial inftance and requeft of the faid Nicholas,
“ affumed upon himfelf, and then and there promifed the faid
“ Nicholas that he would pay him the faid Ł.20. according to the
"tenor and effect of the faid note. Nevertheless the faid Jacob
"the faid fum of money, according to the tenor and effect of
"the faid note, hath not paid unto the faid Nicholas, &c.”
The queftion was, whether the Plaintiff could maintain the prefent fuit in his own name, upon the mere fale and delivery of the note, without any indorfement or affignment from Jeʃʃerow to him?
Sergeant, for the Defendant, having premiffed, that, if there was a confideration, it was immaterial to lay a promife to pay the note , and, on the other hand, that, it there was no confideration, the promife was nugatory and void, contended that a promiffory note, being a choʃe in action, was not affignable by writing at common law, much lefs by delivery alone: Com. L.B.E. 105. 3 Bac. Abr. 605. Salk. 129. Ld. Raym. 757. 774. and that this could not be likened to a note payable to Bearer, where poffeffion gives the action; Cun. L.B. E. 122. but it is the cafe of a note payable to one, or his order, which order muft be in writing to bring it within the ftatute. As, therefore, no indorfement, or affignment, is laid, the action cannot be maintained, in its prefent form. It is true, that the affignee of a bond may fue in the name of the obligee; and the Plaintiff might fue in the name of Jeʃʃerow; but, in that cafe, the Defendant could prove a fet off, and fhew the ballance to be in his favor. Of this advantage he would now, perhaps, be deprived ; nor would this action be final if a bona ƒide indorfee of Jeʃʃerow fhould hereafter appear.
Rawle,in oppofing the motion, obferved, that the verdict has cured all exceptions to the expreffions of the declaration; and that
