US SUPREME COURT DECISIONS

John Hughes, the 16th of February 1763, gave his bond to John Baynton, conditioned for the payment of one thousand pounds. On the 3rd September, 1764, John Baynton and Samuel Wharton, became bound jointly and severally, to John Hughes in a bond conditioned for the payment of six hundred and eight pounds fifteen shillings. On the 8th of May 1765, John Baynton, assigned the one thousand pound bond to the plaintiff, Ann Wheeler, for a just debt, she being ignorant of any dealing, between Hughes and Baynton. This action was brought on the assigned 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 cause came on to be argued. [ Wheeler v. Hughes 1 U.S. 23 (1776)

The Council for the Plaintiff contended, that by the * act of assembly, bonds, bills and notes were negotiable, as promissory notes in England under the 3 and 4 Ann. cap. 9; that negotiability imported a currency from hand to hand; that this act of assembly was formed on the plan of the statute, in many places using the same words, and being made for the same purpose, viz. to encourage trade and commerce, which could only be effected by such a construction, as that an assigned bond should have a currency, from hand to hand, and that the possessor should recover, independent of any contracts or dealings between the obligor and obligee; that the clause in the act of assembly, 'Should commence and prosecute his, her, or their actions at law, for the recovery of the money mentioned in such bonds or notes, or so much thereof, as shall appear to be due at the time of such assignment,' meant as shall appear on the face of the instrument itself. That, for this reason, the obligor should either guard, in making the contract, by leaving out the negotiable words, or should get his payments indorsed on the bonds; that the words, 'To recover as the person or persons to whom the same was or were made payable,' only referred to the mode of recovery, where the assignee brought his action in his own name, as he might under this act; that any other construction would defeat the intention of the act, which was to encourage trade and commerce; but if the assignee was to take the bond subject to the dealing between the obligor and obligee, there was an end of this species of traffic, as no one would ever take an assigned bond in the course of trade, or in any other case, but of a doubtful or desperate debt. To show that a third person, coming in bona fide, and for a valuable consideration, would be in a better situation than his vendor, the

Page 1 U.S. 23, 24

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 Fac. 32. Debt on obligation for two hundred pounds; Defendant pleads the statute of usury, and shows that he was indebted to one Alder in one hundred pounds, and agreed with him that the 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 show 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 farther 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 a&c.

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. 383. 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 [1 U.S. 23, 25]

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