chew, Chief Juftice. The queftion in this cafe is, whether Hughes can have the fame defalcation againft Wheeler, which he could have had againft Banyton, if this had not been affigned?
It was contended for the Plaintiff, that bonds were negotiable as inland bills of exchange.
It was alfo contended, that defalcation by the act, is only where there are dealings between the parties.
For the defendant it was contended, that the act does not make them negotiable, as bills and notes are by the ftatutes of 3 and 4 Ann.c. 9.
It is plain however that the act was drawn from the ftatute, for in many places it follows it, totidem verbis, through in others it varies. This fhews the legiflature intended in thofe inftances, to very the law. Bills in England were negotiable before the ftatute ; notes were only evidence of a debt ; the ftatue was made to put them on the fame footing with bills.
The queftion is whether the act of affembly has done the fame as the ftatute. He then compared the act with the ftatute, to fhew that it was drawn from the ftatute.
The act however fays, "for the encouragement of trade, commerce and credit ; "the ftatute adds," and to make notes negotiable in the fame manner as bills, This is a material variance, and it carried through the act.
The Defendant relied on the words in the act entitling affignee to recover the money, that fhould appear to be due, in like manner as obligee could.
Here is fame variance as before ; for, by the ftatute, the affignee is to recover what fhall be due, "in like manner as indorfee of a bill of exchange."–Had the act purfued the ftatue in thefe refpects, or expreffed the fame meaning in other words, the plaintiff would be right.
What fhall appear to be due at the time of the affignment, has been differently applied by the oppofite council ;–The Plaintiff's council contended, that it meant what appeared to be due on the bond ; fo that, if the bond fhould be paid, yet if payment was not indorfed, the affignee might recover the whole.
The Defendant contended, that the claufe related only to the manner of proceeding, enabling the affignee to fue in his own name.
We have confidered this matter very deliberately, and are clearly of opinion, that the variance between the act and the ftatute, was intentional, not accidental.
An argument of force with us, not mentioned by the defendant, arifes from the wording of the act.
The words "fo much as fhall appear to be due," relate to the time of trial, and not to the time of the affignment ;−they are in the future tenfe.