1776.
Chew, Chief Juſtice. The queſtion in this caſe is, whether Hughes can have the ſame defalcation againſt Wheeler, which he could have had againſt Banyton, if this had not been aſſigned?
It was contended for the Plaintiff, that bonds were negotiable as inland bills of exchange.
It was alſo 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 ſtatute of 3 and 4 Ann. c. 9.
It is plain however that the act was drawn from the ſtatute, for in many places it follows it, totidem verbis, through in others it varies. This ſhews the legiſlature intended in thoſe inſtances, to vary the law. Bills in England were negotiable before the ſtatute; notes were only evidence of a debt; the ſtatute was made to put them on the ſame footing with bills.
The queſtion is whether the act of aſſembly has done the ſame as the ſtatute. He then compared the act with the ſtatute, to ſhew that it was drawn from the ſtatute.
The act however ſays, “for the encouragement of trade, commerce and credit;” the ſtatute adds, “and to make notes negotiable in the ſame manner as bills.” This is a material variance, and it carried through the act.
The Defendant relied on the words in the act entitling aſſignee to recover the money, that ſhould appear to be due, in like manner as obligee could.
Here is the ſame variance as before; for, by the ſtatute, the aſſignee is to recover what ſhall be due, “in like manner as indorſee of a bill of exchange.”–Had the act purſued the ſtatute in theſe reſpects, or expreſſed the ſame meaning in other words, the plaintiff would be right.
What ſhall appear to be due at the time of the aſſignment, has been differently applied by the oppoſite council;—The Plaintiff’s council contended, that it meant what appeared to be due on the bond; ſo that, if the bond ſhould be paid, yet if payment was not indorſed, the aſſignee might recover the whole.
The Defendant contended, that the clauſe related only to the manner of proceeding, enabling the aſſignee to ſue in his own name.
We have conſidered this matter very deliberately, and are clearly of opinion, that the variance between the act and the ſtatute, was intentional, not accidental.
An argument of force with us, not mentioned by the defendant, ariſes from the wording of the act.
The words “ſo much as ſhall appear to be due,” relate to the time of trial, and not to the time of the aſſignment;−they are in the future tenſe.
