following cafes were cited: ı Siderfin. 134.A. made a feoffment to B. by convin. B. makes a feoffment to D. for a valuable confideration and bona fide. The firft feoffor enters and makes a feoffment for a valuable confideration–The feoffee of the firft feoffee fhall retain the land. Cro' Jac. 32. D. bt on obligation for two hundred pounds: Defendant pleads the ftatute of ufury, and fhews that he was indebted to one Alder in one hundred pounds, and agreed with him that the fhould for bear him for a year in confideration of thirty pounds, and that he fhould 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 juftly 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 fhew that promifory notes in England, are not fubject to any difcount or dett off, between the promiffor and promifee, the following cafes were quotes. ı Salk. ı 26. Bill loft; finder transfer s it to C. for a valuable confideration–the original owner cannot bring trover againft C. ı Burrow. 459. S.P. ı Raymond 738.2 Burr. 675.6.1224.1227.– 2 Freeman 257. Bill Payable to A. or bearer, is like fo much money paid to whomfoever the note is given ; that let what difcount, or conditons, foever, be between the party who gives the note, and he to whom it is given, yet it fhall not affect the bearer.–3Bacon. title Merchant. Conryns 43. Marius 72. 3 Burrows ı523.27. 29.
It was contended further by the plaintiff, that the act of affembly had changed the nature of thefe contracts ; that they were not to be conftrued on commercial principles only ; that the doctrine of the defendant eftablifhed this principle, that it was nudum pactum, there was no confideration at the time of the bond being given or affigned. To which it was anfwered, that, judging on commercial principles, a want of confideratin was no objection, for there is no fuch thing as nudum pactum in mercantile tranfactions. 3 Burr.1669.– Plaintiff alfo denied defendant to be wtihin the defalcation act.
The council for the defendant contended, that it was not the intention of the Legiflature to make bonds negotiable here as promiffory notes in England. They allowed the law as laid down in the above cafes, but denied the application ; infifting that they ftood upon quite a different footing–That nothing more was meant by the act, than to give affignees the benefit of fuing in their own names and preventing any releafe, or other dealings, affecting the affignee after affignment once made ; that in England, a bond paffes into the hands of an affignee fubject to all the equity it had in the hands of the affignor, for which they quoted 6 Vern. 692.675. ı0 Mod.445 ı P.Wms. 383.452.459. That the conftruction, contended for by plaintiff, would open a door to numberleff frauds ; that a fatisfied bond might be paffed away, and the obligor compelled to pay it twice ; that even a forged bond might pafs in the fame