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 ſifteen 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 indoſed 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, the- ↑ 1 Geo. 1. c. 8. See 1 State Laws. 77.
