ufual courfe, having taken out the firft writ, and delivered it as foon as was ufual, his writ fhould take preference ; and the Court accordingly order the return to be made on the Habeas Corpus.
John HUGHES, the 16th of February 1763, gave his bond to John Baynton, conditioned for the payment of one thoufand pounds. One the 3dSeptember, 1764, John Baynton and Samuel Wharton, became bound jointly and feverally, to John Hughes in a bond conditioned for the payment of fix hundred and eight pounds fifteen fhillings. On the 8th of May 1765, John Baynton, affigned the one thoufand pound bond to the plaintiff, Ann Wheeler, for a juft debt, fhe being ignorant of any dealing, between Huges and Baynton. The action was brought on the affigned 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. 23rd April, the caufe came to be argued.
The Council for the Plaintiff contended, that by the [♦] act of affembly, bonds, bills and notes were negotiable, as promiffory notes in England under the 3 and 4 Ann. cap. 9 ; that negotiability imported a currency from hand to hand ; that this act of affembly was formed on the plan of the ftatue, in many places ufing the fame words, and being made for the fame purpofe, viz. to encourage trade and commerce, which could only be effected by fuch a conftruction, and that an affigned bond fhould have a currency, from hand to hand, and that the poffeffor fhould recover, independent of any contracts or dealings between the obligor and obligee ; that the claufe in the act of affembly, " Should commence and profecute his, her, or their "actions at law, for the recovery of the money mentioned in fuch "bonds or notes, or fo much thereof, as fhall appear to be due at "the time of fuch affignment," meant as fhall appear on the face of the inftrument itfelt–That, for this reafon, the obligator fhould either guard, in making the contract, by leaving out the negotiable words, or fhould get his payments indofed on the bonds ; that the words, "To recover as the perfon or perfons to whom the fame was or were made payable," only referred to the mode of recovery, where the affigned brought his action in his own name,as he might under his act ; that any other conftruction would defeat the intention of the act, which was to encourage trade and commerce ; but if the affignee was to take the bound fubject to the dealing between the obligator and obligee, there was an end of this fpecies of traffick, as no one would ever take an affigned bond in the courfe of trade, or in any other cafe, but of a doubtful or defperate debt.
To fhew that a third perfon, coming in bona fide, and for a valueable confideration, would be in a better fituation than his vendor, the
[♦]ı Gco. ı.o. 8. Sec ı State Laws. 77.