1788.
There muft then be fome collateral matter, fome injury to the Plaintiff, or benefit to the Defendant, in the conʃideration itʃelʃ, laid as a ground for the affumption. If the Defendant had promifed to the Plaintiff, having poffeffion of the note, and a power to fue for the money (though not in his own name) that if he would forbear fo fue him, he would pay it ; or, if the promife had been in confideration of his delivering the note up to be cancelled; thefe promifes, though made to a perfon not having an affignment of the note, would perhaps have been fufficient to ground an aʃʃumpʃs : upon. But his is a bare promife to pay to the Planitiff, a ftranger, in confideration moving neither to, nor from, the Defendant, and which could not redound either to his benefit or injury.– Befides, the promife laid, is to pay to the Plaintiff, according to the tenor and eƒƒect oƒ the note, and the tenor and effect of the note was to pay to Jeʃʃerow, or his order, and not to any perfon to whom he fhould fell and deliver it. It the note had been payable to Jeʃʃerow, or Bearer, a bona ƒide purchafer of it might have maintained the action ; becaufe fuch notes pafs by delivery: But a note payable to order, muft be aʃʃigned, to enable the holder to bring the action in his own name.
Bonds in England are every day affigned, attended with irrevocable powers to fue for the affignees ufe: Such an affignment one would think would be full evidence of a fale and delivery, yet no actions are ever brought on that ground, but always in the name of the obligees.
We would intend every thing we could to fupport the verdict; but we cannot intend a confideration quite different from that which is laid, which we muft do in the prefent cafe, if we were to give our opinion in favor of the Plaintiff.
The judgment, therefore, muft be arrefted.
GIBBS verʃus GIBBS.
T
HE cafe was briefly this:– A certain Aaron Muʃgrove has brought a qui tam action againft the Defendant, Ann Gibbs, in which, alter a trial in the Supreme Court, he obtained a judgment on the ʃecond day oƒ October, 1788 ; but no execution was thereupon iffued. On the fourth day of the fame month, however, the Defendant having then confeffed judgment in this Court to the Plaintiff, Benjamin Gibbs. a Fi. ƒa was iffued in this caufe, and duly executed upon a houfe and lot of ground in Philadelphia; after which Mrs. Gibbs committed an act of bankruptcy, and the Sheriff paid the money levied by virtue of the Fi. ƒa. into the hands of the Prothonotary, to be difpofed of as the Court fhould direct.
In the courfe of the argument, there were fome infinuations of collufion, with refpect to the fecond judgment ; but as no proof was offered, the only queftion before the Court was, whether, under all
