support it against another who receives it un-| Mod. 607. It lies to try the title to a curacy, 3 der the bankrupt. In both cases it is the property Wil. 355. So for money extorted by duress of of the assignees. And though while this action goods. 2 Str. 915, Astley v. Reynolds, and 4 was in its infancy (2 Jones, 126. 2 Lev. 245,) the T. R. 485, Irving v. Wilson. And for money courts endeavored to find technical arguments to paid under an order of a court not having comsupport it, as by a notion of privity, &c., yet petent authority. 2 Ld. Ray. 742, *Now- [*442 that principle is too narrow to support these digate v. Davy. For a part of a sum of money actions, in general, to the extent to which they paid, and the whole sum afterwards recovered are admitted. In the same case, as reported in by judgment. 1 Vern. 176, Barbone v. Brent. 3 Wilson, 304, it is said by the court, Whoever By a soldier against his captain for the value has received the money for the bankrupt's of a horse lost in a storm. 2 Ld. Ray, 1007, goods is supposed in justice to have received Norris v. Napper. By a woman against a man the same for the use of the assignees, in whom who married her, having a former wife living, the property of those goods was, by law, vested; for rents of the plaintiff's lands received by the and to have promised to pay the same to the man. 11 Mod. 146, Asher v. Wallis. Against assignees; there is a supposed privity of con- a sheriff for money levied on a fi. fa. Comb. tract between the persons whose money it lawful- 430, 447. 1 Salk. 22. 6 Mod. 161. For the ly is, and the person who has got or received it.' price of goods taken in execution, and sold un441*] *The same ideas are suggested by der a warrant of distress upon a conviction, Lord Mansfield in the case of Harkes . Saun- the conviction having been quashed. Feltham ders, Coup, 290. Indeed, among the innumera-c. Terry, cited in Lindon v. Hooper, Coup. 419. ble cases in which the action for money had So it lies against a stake holder on the determiand received is the proper remedy, scarcely one nation of a wager. 10 Mod. 315, Temple c. can be found in which there exists any privity Welds. For money paid to insure lottery tickets, of contract between the parties. such insurance being contrary to law. Corp. It lies to recover fees received by the defend-793, Browning v. Morris. For a forfeiture unant claiming a right to the plaintiff's office; as der a by-law of the corporation of barber surin the case of Ioward v. Wood, 2 Jones, 126. 1 geons in London. 2 Lev. 252. So it lies in Freem. 473, 478, where the action was brought disaffirmance of the contract, for the purchase to try the plaintiff's title to the office of steward money paid for a thing not delivered. 1 Str. of a court baron. "It was objected for the de- 407. "Anon. For money paid by mistake. fendant, that, this action did not lie, but only a Corp. 567, Buller v. Harrison. Doug. 637. special action on the case; and that this action (615) Ancher v. Bank of England. Against is not only improper, but contrary to the truth commissioners of bankrupt, for a dividend. of the case; for the plaintiff declares upon Doug. 408, Brown v. Bullen. Against the prinassumpsit for money received by the defendant cipal, if the money be paid over by the agent. to the use of the plaintiff, and the jury find 1 Stra. 480, Cary v. Webster. 4 Burr. 1984, that the defendant received the money to his Sadler v. Evans. In the cases of a fictitious own use, claiming the office of steward in his payee of a bill of exchange, it was admitted own right, and the money as fees incident to there was no privity, and yet the plaintiffs rethe office, which he had exercised contrary to covered on the count for money had and rethe will of the plaintiff, and not otherwise due ceived. 1 H. Bl. 313, Collins v. Emmit. 3 T. than by the exercise of the office. That this R. 177, Tatlock v. Harris. 3 T. R. 182, Vere r. money was incident to the tort done by the de- Lewis. 1 H. Bl. 586, Gibson v. Minet. In the fendant in the exercise of the office, and where following cases there was no privity of contract, a receipt depends merely on a tort, there can be yet the plaintiff had judgment. Styles, 296, no contract, or privity, and without these, no | Starkey v. Mill. 1 Vent. 119, Hornsey v. Dimdebt, and by consequence indebitatus assumpsit ocke. 1 Burr. 374, Harris v. Huntback, 2 Burr. does not lie." But it was resolved by the whole 1005, Moses v. Macferlan. 3 Burr. 1516, Grant court that the action lay; for this is an expedir. Vaughan. Corp. 199, Clarke v. Shee and tious remedy to facilitate the recovery of just Johnson. 2 W. Bl. 827, Hitchen v. Campbell. rights; and this manner of action has now pre-3 Wilson, 308, S. C. These cases clearly show vailed for a long time; and the point had been ruled often by the judges in their circuits, and actions frequently brought in this manner; and lately upon solemn argument in the court of exchequer, in the case of Dr. Aris, 2 Mod. 260, who brought such action for the profits of the office of comptroller in the port of Exeter, it was resolved by the Lord Chief Baron and all the court that the action lay." Here the same exception was expressly overruled which is now set up in the present action; and it has been uniformly overruled ever since. The same points were made and overruled in the case of Dr. Aris, above cited; and the court said that indebitatus assumpsit will lie for rent received by one who pretends a title, and cited 4 H. VII. 6. b. and Moor, 458. This was also agreed in 12 Mod. 324, Hussey v. Fiddall. that the want of privity is no objection to the action of indebitatus assumpsitfor money had and received. If, then, the want of privity is no bar, what is there to prevent the plaintiff from recovering against the defendant? Is it that he is not in justice entitled to the money? Or has the defendant a right to retain it? It is admitted that the plaintiff may look to the intermediate indorser, and that he may recover from the defendant. The objection then is, that the defendant is not liable to the present plaintiff, but to the intermediate indorser, who alone is liable to the plaintiff. But the plaintiff may sue in the name of the intermediate indorser, "for" as Lord Holt says in Buller e. Crisp, "the indorsement amounts at least to an agreement that the indorsee should sue for the money in the name of the indorser, and receive it to his own use;" and this court will prevent the intermediate indorser from releas- [*443 12ing the action, and from interfering in any "In assumpsit for money received to the plaintiff's use, the question at the trial was, who was the yeoman of the black rod." that view either writing or certain formalities were required. Id. on Justinian, 4to ed. 614. Therefore it was intended as a guard against rash, inconsiderate declarations: but if an undertaking was entered into upon deliberation and reflection it had activity; and such promises were binding. Both Grotius and Puffendorf hold them obligatory by the law of nations. Grot. lib. 2, c. 11, De Promissis. Puff. lib. 3, c. 5. They are morally good, and only require ascertainment. Therefore there is no reason to extend the principle, or carry it farther. There would have been no doubt upon the present case, according to the Roman law; because here is both stipulation (in the express Roman form) and writing." other manner to frustrate the plaintiff's suit. | to prevent obscurity and uncertainty: and in Besides, a recovery and satisfaction in the present action will be a bar to any action which the intermediate indorser may bring against the present defendants on the same note. Complete justice is done between both parties in the shortest, least expensive, and least oppressive manner; and that circuity of action, which the "law abhors" is avoided. If the plaintiff recover against the intermediate indorser, and he against the defendant, the judgment will come down upon the defendant, charged with the heavy expenses of two suits instead of one. The plaintiff will be turned round upon a mere point of form, and perhaps may lose the debt altogether by the insolvency of the intermediate indorser. If the indorsements are in blank, the plaintiff may strike out the intermediate indorsements, and declare as the immediate indorsee of the first indorser. Erans on Bills, 15, 1 Esp. Rep. 180, Smith v. Clark. For a blank indorsement authorizes the holder to fill it up with what he pleases, consistent with the nature and tenor of the instrument. So that if privity is necessary, it is in the power of the plaintiff to raise it. But the cases before cited show that privity is not necessary to support the action for money had and received; and from the nature of the thing it cannot be necessary in any case where the instrument is negotiable, whether it be made so by the custom of merchants, by positive statute or by the contract of the parties. 5. The fifth proposition is, that a promise in writing, without a consideration expressed, is nudum pactum. Mr. Justice Wilmot then refers to a passage in Bracton, which will be considered presently, and proceeds thus: "Our own lawyers have adopted exactly the same idea as the Roman law. Plowden, 308, b. in the case of Sherynton and Pledal v. Strotton and others, mentions it; and no one contradicted it. He lays down the distinction between contracts or agreements in words, (which are more base,) and contracts or agreements in writing, (which are more high,) and puts the distinction upon the want of deliberation in the former case, and the full exercise of it in the latter. His words are the marrow of what the Roman lawyers had said. Words pass from men lightly;' but where the agreement is made by deed, there is more stay," &c. "The delivery of a deed is a ceremony in law, signifying fully his good will that the thing in the deed should pass from him who made the deed to the other; and, therefore, a This doctrine of nudum pactum seems not to be well settled, although much has been said│deed, which must necessarily be made upon upon the subject. great thought and deliberation, shall bind, withIt was considerably discussed in the case of out regard to the consideration." 'The voidPillans v. Van Mierop, 3 Burr. 1663, but as ness of the consideration is the same in reality there were other principles in that case, it was in both cases; the reason of adopting the rule not necessary to decide absolutely upon this was the same in both cases; though there is a point. Yet the whole court seemed strongly difference in the ceremonies required by each inclined to the opinion that the rule, ex nudo law. But no inefficacy arises merely from pacto non oritur actio, did not apply to a prom-the naked promise. Therefore, if it stood only ise in writing. Lord Mansfield said, "A nudum pactum does not exist in the usage and law of merchants. "I take it, that the ancient notion about want of consideration was for the sake of evidence only; for when it is reduced to writing, as in covenants, specialties, bonds, &c. there was no objection to the want of consideration. And the statute of frauds proceeded upon the same principle. In commercial cases amongst merchants, the want of consideration is not an objection." 444*] *Mr. Justice Wilmot. "I can find none of those cases that go upon its being nudum pactum, that are in writing; they are all upon parol. I have traced this matter of nudum pactum; and it is very curious." He then explained the principle of an agreement being looked upon as a nudum pactum, and how the notion of nudum pactum first came into our law. He said it was echoed from the civil law. Ex nudo pacto non oritur actio.' Vinnius gives the reason in lib. 3. tit. De Obligationibus, 4to ed. 596. If by stipulation, (and a fortiori, if by writing,) it was good without consideration. But it was made requisite in order to put people upon attention and reflection, and upon the naked promise, its being in this case reduced into writing, *is a sufficient [*445 guard against surprise; and, therefore, the rule of nudum pactum does not apply in the present case. "I cannot find that a nudum pactum evidenced by writing has ever been holden bad; and I should think it good: though, where it is merely verbal, it is bad. Yet I give no opinion upon its being good always when in writing.” "It has been melting down into common sense of late times." Yates and Aston, Justices, concurred in opinion, nearly on the same grounds. This opinion of the court in Pillans v. Van Mierop, does not seem to be contradicted by any subsequent case, so far at least as it affirms this principle, that a written promise carries with it a prima facie evidence of a good consideration, (until the contrary appears,) and throws the burden of proof upon the opposite party. So that in an action between the original parties, upon a promise in writing, it does not seem to be necessary to aver a consideration. Black 1. At the time this argument was made, the writer had not seen the case of Rann v. Hughes, in the House of Lords, reported in a note to the case 66 APPENDIX. stone's opinion (2 Com. 446,) goes further than | put to prove the consideration of a written There is certainly a difference between good evidence, and incontrovertible, or conclusive evidence. The expression good evidence, seems to imply only prima facie evidence. And this seems to be the extent of the proposition, as it applies to an action between the original parties to a note, for when it is negotiated, and the action is between an indorsee and the maker, the latter will not be allowed to aver the want of a consideration, because "its operation is then governed by the same law as a bill of exchange, which is the law merchant; and that is founded upon the law of nature and nations, in which the want of a consideration is no essential defect in the contract." (1 Powell on Contracts, 341,) and in which the great leading principle is, fides est servanda. 1 Fonb. 338, note (d). Powell and Fonblanque have both controverted the doctrine as laid down by Wilmot, in the case of Pillans v. Van Mierop, and by Blackstone, in the passage above cited; but their arguments only go to prove that a note in writing is not conclusive and incontrovertible evidence of a good consideration between the original parties; and it is believed a case cannot be found in which the plaintiff has been of Mitchinson v. Hewson, 7 T. R. 350, which is said in a third edition of Doug. 683, to have been decided 14th of May, 1778, and to be reported in 7 Bro. Part. Cases, 550. Nor is the case mentioned by Powell, or Fonblanque, in treating of this subject. | taken opposite premises, and yet both draw the Now it seems reasonable to conjecture, that Fonblanque (col. 1, p. 326, note a.) says, "The civil law is so generally referred to in the discussion of this subject, that it may be material to take a cursory view of the different means by which a legal obligation was created by that law, in order to show that though we have borrowed the phrase nudum pactum from the civil law, and the rule which decides upon the nullity ofi ts effect, yet that the common law has not in any degree been influenced by the notions of the civil law, in defining what constitutes nudum pactum." He then cites authorities to show that by the civil law a promise in writing might be a nudum pactum, and, therefore, not capable of supporting an action, and hence seems to infer that such is the rule of the common law. However, both Wilmot and Blackstone are supported by Bracton, who appears to be the first writer upon the English law, who has noticed the doctrine of nudum pactum. Bracton has certainly interwoven many of the principles of the civil law with his observations on the common law, but it is believed he has done it only in cases where the common law has judged of, as all other agreements in writing are, by the common law, and does not prove the con-verse of the proposition, that, when in writing, the party must be, at all events, liable. He here observed upon the case of Pillans v. Van Mierop in The Lord Chief Baron Skynner, in delivering the Burr., and the case of Losh v. Williamson, Mich.16 G. opinion of the judges, has these observations: III. in B. R.; and so far as these cases went on the But it is said that if this promise is in writing, doctrine of nudum pactum, he seemed to intimate that takes away the necessity of a consideration, that they were erroneous. He said that all his brothers concurred with him, that in this case there was and obviates the objection of nudum pactum, for not a sufficient consideration to support this dethat cannot be where the promise is put in writing;" "but whatever may be the rule of the civil mand, as a personal demand, against the defendlaw, there is certainly none such in the law of Eng-ant, and that its being now supposed to be in writing land." His lordship observed upon the doctrine of makes no difference." nudum pactum by Mr. J. Wilmot, in the case of Pillans v. Van Mierop and Hopkins, 3 Burr. 1663, and that he contradicted himself, and was also contradicted by Vinnius, in his comment on Justinian. All contracts are by the laws of England disspecialty, and tinguished into agreements by agreements by parol; nor is there any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written, and not specialties, they are parol, and a consideration must be proved. But it is said that the statute of frauds has taken away the necessity of any consideration in this case; the statute of frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by common law they were chargeable. His Lordship here read those sections of that statute which relate to the present subject. He observed that the words were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and This case, as far as it goes, must be considered as having decided the law in England, where the decisions of the highest court of judicature are regarded as binding. But in this country it can only be respected as an opinion; and the question is still open as to the grounds of that opinion. It is not contended that a promise in writing cannot be a nudum pactum; but the question is, whether the burden of proof is not thrown upon the promisor; or whether the writing does not raise a prima facie presumption of a good consideration. How far this question is affected by the case of Rann and Hughes, is left to the consideration of the reader. If a promissory note is admitted to be a mercantile instrument, and governed bythe law merchant, the question of nudum pactum cannot arise in the present case. For it is believed to be settled law, p. 358. that "a nudum pactum does not exist in the usage and law of merchants." Browne, in his View of the Civil Law, vol. 1, in a note, speaking of writings not under seal, as considered at common law, says, "they may be evidence of the agreement, or intent of the parties, but not conclusive evidence of sufficient consideration;" and cites the case of Rann v. Hughes. 171 recognized those principles. The passages of Bracton, alluded to by Wilmot, in the case before cited, are the following: Book 3, c. 1, § 2, p. 99, edition of 1640. Videndum est etiam unde actio oritur? Et sciendum est quod ex obligationibus, tanquam à matre, filia. Obligatio autem, quæ est mater actionis, originem ducit et initium ex aliqua causa præcedente, sive ex contractu vel quasi, sive ex maleficio vel quasi. Ex contractu vero oriri poterit multis modis, sicut ex conventione, per interroga-eration to make the assumpsit to the assignee tiones et responsiones, ex conceptione verborum quæ voluntates duorum in unum trahit consensum, sicut sunt pacta, conventa, quæ nuda sunt aliquando, aliquando restita; quæ, si nuda fuerint, exinde non sequitur actio, quia ex nuda pacto non nacitur actio. Oportet igitur quod habeat vestimenta, de quibus inferius dicendum In the next chapter, § 1, in the same page, he tells us what are those vestimenta which prevent pacts from being nude. In Styles, 419, Bunniworth v. Gibbs, Chief Justice Rolle said, a little consideration will serve to ground a promise on." Blackstone (2 Com. 445,) says, any degree of reciprocity will prevent the pact from being nude.' And Wilmot, (3 Burr. 1666.) said, "the least spark of a consideration will be sufficient." In Fenner v. Meares, *2 W. Bl. 127 1. Judge Black- [*449 stone said, that the assignment and other transactions were fully sufficient as a considbinding.' And in Hawkes v. Saunders, Corp. 290, Lord Mansfield said that "a legal or equitable duty is a sufficient consideration for an actual assumpsit;" and that it was too narrow ground" to say that "there must be either an immediate benefit to the party promising, or a loss to the person to whom the promise was made." And Buller declared the true rule to be, "that wherever a defendant is under a moral obligation, or is liable in conscience and equity Est enim obligatio, quasi contra ligatio, et to pay, that is a sufficient consideration.” ́But quatuor habet species, quibus contrahitur, et even admitting that the rule of nudum pacplura vestimenta. Contrahitur enim re, ver- tum applies to written contracts, yet in the pres448*] bis, *scripto, consensu, traditione, junc-ent case there is a sufficient consideration. For, tura, quæ omnia dicuntur vestimenta pactorum." according to Judge Blackstone, the assignAnd in § 9, of the same chapter, he says, ment and other transactions," and particularly "Inventæ autem sunt hujusmodi stipulationes the payment of the money by the intermediate et obligationes ad hoc,quod unusquisque habeat indorser to the defendant, were certainly sufet sibi acquirat quod sua interest, si contra ea ficient considerations to support the assumpsit. agatur que in stipulationem deducuntur. Et si res in stipulatione deducta ali detur, nihilominus intererit stipulatoris, quia ille qui promisit, tenebitur ad interesse, vel ad pœnam, si pœna fuerit in stipulationem deducta." est. “Per scripturam vero obligatur quis, ut si quis scripserit alicui se debere, sive pecunia numerata sit, sive non obligatur ex scriptura, nec habebit exceptionem pecunia non numerata contra scrip- ! turam, quia scripsit se debere. Et non solum obligatur quis per verba, sed per scripturam, et per literas, non ut literæ quidem ipsæ, vel figura literarum obliget, sed oratio significativa quam exprimunt literae; sed utrumque cooperatur ad obligationem, oratio significativa cum litera." These expressions of Bracton are strong and clear; and if he is to be considered as only borrowing terms from the civil law to express his ideas of the common law, they are certainly conclusive. The reason of the rule seems to be truly given by Plowden, in the case cited by Mr. Justice Wilmot; and if a written promise is not within the reason of the rule, it would seem that the rule cannot apply. In the ancient books, no notice is taken of any written agreements but those under seal; and the reason probably is, that in those times by far the greater part of the people could not write, so as to sign their names to an instrument. Hence a seal was substituted for a signature; but not because it was a more solemn act, but from the necessity of the case. Witnesses also were produced for identifying the seal, and not to add to the obligation of the contract. But the difference between sealed instruments and others has now become obsolete in practice; for there is no case of a contract, where the interests of third persons are not involved, in which the defendant may not either at law or in equity, avail himself of the want of consideration. And the most trifling consideration is now held sufficient to take even parol contracts out of the rule of nudum pactum. Upon the whole, therefore, whether this case be considered upon the ground of a promissory note before the statute of Anne, or upon general principles of common law, the count for money had and received seems to be well supported by the evidence offered. IX. It is believed that no case has been reported in Virginia in which this question has been decided. There are cases, however, which may possibly be considered as affecting some of the principles involved in the present inquiry. In Mackie and Davis, 2 Wash. 229, it is held that the assignee of a bond may maintain indebitatus assumpsit for money had and received against the assignor upon principles of common law. There are, in that case, several assertions and admissions of counsel which are deemed not to be correct, but are warranted only by a few immature observations of some of the writers since the statue of Anne. One of the counsel seems to consider the custom of merchants as no part of the common law. This has been shown to be an incorrect position, by the concurrent adjudications of a long series of years. It is said also that "as to promissory notes, the right of recovery against the indorser is expressly given by the statue of Anne, and from this provision, an invincible argument is to be drawn in favor" of the defendant, for, if in a commercial country like England, it was necessary for the legislature to provide a remedy against the indorser of a promissory note, it is obvious that no such right existed at common law." But if the statue of Anne was in affirmance of the law as it stood before, and only enacted to remove the doubts which had been [*450 raised by Lord Holt's decision in Clerke e. Martin, then this argument totally fails. And that such was the fact is believed to be proved by the authorities before cited. One of the counsel for the plaintiff considered the case as standing on the same ground as notes of hand did before the statue of Anne; and de 66 nies that notes were within the custom of mer- | gotiable than the promissory notes of any other chants, for which he cites Kyd as an authority; description of persons. Again, the same counbut Kyd says only "that it was held," &c. and sel observes, that though notes of hand, acrelies on the case of Clerke v. Martin, and cording to the statute of Anne, were placed on the preamble of the statute. And in the same the same ground with bills of exchange, and manner, every like assertion in the modern of course governed by the same rules, the legis books may be traced up to the same source. The lature of 1748, by assimilating them in every only authority which can support the position is respect to bonds, rendered them unlike to bills the case of Clerke v. Martin. The statute of of exchange in this country, and thereby gave Anne having put the question at rest, no one a convincing proof that it was not their intenhas taken the pains to examine the real state tion to suffer bonds to be governed by those of the law prior to the statute, but one writer rules which apply to bills." And in confirmaafter another has repeated the assertion without tion of his argument he cites Dall. Rep. 23. the least examination. In England it is of no Judge Roane observes, "that notes of hand are importance whether they are correct or not; now assignable in England, and it is admitted but in this country, where few of the states that the assignee is discharged of any equity have adopted the statute, it becomes interesting which existed against the assignor, unless the to know how the law really stood before. In note was given for a usurious or gaming conthe case of Mackie and Davis, the counsel and the sideration. The reason of this is, not that the court place much reliance on the privity between principle attached to them as a legal consethe indorser and his immediate indorsee, and it quence of their being made assignable, but beis evident that they borrowed their ideas from cause this rule, for commercial purposes, apKyd on Bills, 114. But Kyd cites no authority plied to bills of exchange; and the statute of for his observations; nor are they warranted by Anne, declaring notes assignable in like manner any adjudged case, at least so far as they apply as bills of of exchange, showed an intention, as to the action for money had and received. it was supposed, to render the former as highly Judge Roane says, The case of promissory negotiable, and as current in internal, as the notes will be an important guide, and, there- latter were in external commerce. The act of fore, it will be proper to see how they stood pre- our assembly embraces equally the subject of vious to the statute, which it is supposed created bonds and notes, but contains no expressions the liability of the indorser of them." But he tending to induce a belief that the making them proceeds no farther in his investigation than to assignable was intended for the purposes of comthe case of Lambert v. Oakes, 20th May, 11 W. merce. The design certainly was to make them III. He says, "this case was decided anteced- transferable to a certain extent; the provision ent to the statute of Anne, and was, consequent-points out the limits of their negotiability, and ly, governed by the principles of the common law." If he considered the custom of merchants as part of the common law, (as it really is,) he was certainly correct. But the probability is, that the declaration was in that case grounded on the custom of merchants: 1st. Because that was the usual and established form of declaring on promissory notes in those days; 2d. Because there had not at that time been a distinction discovered between a promissory note and an inland bill of exchange; 3d. Because there never was, either before or since the statute of Anne, a time when an indorsed promissory note was not considered as a bill of exchange; and, 4th. Because four out of the five reporters of that case call it a bill of exchange, and even Lord Raymond himself calls it a bill through out his whole report, except in the first line where he calls it a note. fixes a strong mark of distinction between them and bills of exchange. As to the latter, they were assignable, and the indorsement transferred a legal right to the indorsee. They did not owe this quality to statutory provisions, and of course they continued within that principle which had attached to them, and of which they were not deprived by any statute." He then cites the case of Peacock . Rhodes, Doug. 636, *where Lord Mansfield observes that [*452 the indorsee of a promissory note or bill of exchange is not to be considered in the light of an assignee at common law, because it would stop their currency, and injure trade and commerce. He then proceeds: It is, therefore, not because the indorsee is the assignee of the legal right to such bills and promissory notes that the equity is barrred by the indorsement, but because of their quality as a currency, and from the necessity of adopting such a principle, for the convenience of trade and commerce with respect to such currency. But bonds are not to be considered as a currency, and within the reason of the principle laid down in Peacock v. Rhodes; for that principle is founded on commercial considerations altogether, and not upon a distinction between legal and equitable assignments. The provision of this act has long gov 451*] *Judge Roane further says that Bonds, in England, are not assignable, and, therefore, stands in the same situation as notes of hand did at the time when this case was determined." It is believed, upon the authority of the cases already cited, that there never was a time when a promissory note payable to order was not assignable, and even Lord Holt, subsequent to the case of Clerke v. Martin, admitted, in the case of Buller v. Crips, that an indorse-erned the assignment of bonds, and it is but of ment of such a note would create a negotiable bill. In the case of Norton v. Rose, 2 Wash. 240, the counsel admit that goldsmiths' notes "circulated like bills of exchange" before the statute of Anne, and yet it is contended that promissory notes derived their whole negotiability from the statute. But goldsmiths' notes were simple promissory notes, and were not more ne late years that the existence of such a principle, as has been contended for in this cause, has been thought of as applicable to bonds and notes." CARRINGTON, Justice. "To consider this case upon general principles, the question is, whether an equity, originally attached hand were not assignable until the 3d and 4th assignee without notice. In England, notes of to a bond, follows it into the hands of an |