1776.
following caſes were cited: 1 Siderfin. 134. A. made a feoffment to B. by covin. B. makes a feoffment to D. for a valuable conſideration and bona fide. The firſt feoffor enters and makes a feoffment for a valuable conſideration–The feoffee of the firſt feoffee ſhall retain the land. Cro. Jac. 32. Debt on obligation for two hundred pounds; Defendant pleads the ſtatute of uſury, and ſhews that he was indebted to one Alder in one hundred pounds, and agreed with him that he ſhould forbear him for a year in conſideration of thirty pounds, and that he ſhould 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 juſtly 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 ſhew that promiſſory notes in England, are not ſubject to any diſcount or ſett off, between the promiſſor and promiſee, the following caſes were quoted. 1 Salk. 126. Bill loſt; finder transfers it to C. for a valuable conſideration—the original owner cannot bring trover againſt C. 1 Burrow. 459. S. P. 1 L. Raymond 738. 2 Burr. 675. 6. 1224. 1227.—2 Freeman 257. Bill Payable to A. or bearer, is like ſo much money paid to whomſoever the note is given; that let what diſcount, or conditions, ſoever, be between the party who gives the note, and he to whom it is given, yet it ſhall not affect the bearer.–3 Bacon. title. Merchant. Comyns 43. Marius 72. 3 Burrows 1523. 27. 29.
It was contended further by the plaintiff, that the act of aſſembly had changed the nature of theſe contracts; that they were not to be conſtrued on commercial principles only; that the doctrine of the defendant eſtabliſhed this principle, that it was nudum pactum, there was no conſideration at the time of the bond being given or aſſigned. To which it was anſwered, that, judging on commercial principles, a want of conſideration was no objection, for there is no ſuch thing as nudum pactum in mercantile tranſactions. 3 Burr. 1669.—Plaintiff alſo denied defendant to be within the defalcation act.
The council for the defendant contended, that it was not the intention of the Legiſlature to make bonds negotiable here as promiſſory notes in England. They allowed the law as laid down in the above caſes, but denied the application; inſiſting that they ſtood upon quite a different footing—That nothing more was meant by the act, than to give aſſignees the benefit of ſuing in their own names and preventing any releaſe, or other dealings, affecting the aſſignee after aſſignment once made; that in England, a bond paſſes into the hands of an aſſignee ſubject to all the equity it had in the hands of the aſſignor, for which they quoted 6 Vern. 692. 675. 10 Mod. 445. 1 P. Wms. 83. 452. 459. That the conſtruction, contended for by plaintiff, would open a door to numberleſſ frauds; that a ſatisfied bond might be paſſed away, and the obligor compelled to pay it twice; that even a forged bond might paſs in the ſame