prove the confideration of fuch a promise, until the defendant has proved circumstances tending to destroy the presumption arifing from the written contract. Powell and Fonblanque have taken opposite premifes, and yet both draw the fame conclufion. The former fays, (in his effay on the law of contracts, Vol. 1. p. 340.) "Now it feems "reasonable to conjecture, that when this maxim of the Roman law, "quod ex nudo pacto non oritur actio," was adopted and received into "our fyftem, it was adopted in its full extent."

Fonblanque, (Vol. 1. p. 326, note a.) fays, "The civil law is so gene"rally referred to in the difcuffion of this fubject, that it may be ma"terial to take a curfory view of the different means by which a legal "obligation was created by that law, in order to few, that though we "have borrowed the phrafe nudum pactum from the civil law, and the "rule which decides upon the nullity of its effect, yet that the common "law has not in any degree been influenced by the notions of the civil law, in "defining what conftitutes 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 fupporting an action, and hence feems 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 obfervations on the common law, but it is believed he has done it only in cafes where the common law has recognized thofe principles. The paffages of Bracton, alluded to by Wilmot, in the cafe before cited, are the following: Book 3d. c. 1. §. 2. p. 99. edition, 1640. "Videndum eft etiam unde actio oritur? Et fciendum eft quod ex obligationibus, tanquam à matre, filia. Obligatio autem, quæ eft mater actionis, originem ducit et initium ex aliqua caufa præcedente, five ex contractu vel quafi, five ex maleficio vel quafi. Ex contractu vero oriri poterit multis modis, ficut ex conventione, per interrogationes et refponfiones, ex conceptione verborum quæ voluntates duorum in unum trahit confenfum, ficut funt pacta, conventa, quæ nuda funt aliquando, aliquando veftita; qua, fi nuda fuerint, exinde non fequitur actio, quia ex nudo pacto non nafcitur actio. Oportet igitur quod habeat veftimenta, de quibus inferius dicendum eft.-In the next chapter, §. 1, in the fame page he tells us what are those veftimenta which prevent pacts from being nude.

Eft enim obligatio, quafi contra ligatio, et quatuor habet fpecies, quibus contrahitur, et plura veftimenta. Contrahitur enim re, verbis,

fcripto, confenfu, traditione, junctura, quæ omnia dicuntur vestimenté pactorum."

And in §. 9, of the fame chapter, he fays, "Inventæ autem funt hujufmodi ftipulationes et obligationes ad hoc, quod unufquifque habeat et fibi acquirat quod fuâ intereft, fi contra ea agatur quæ in ftipulationem deducuntur. Et fi res in ftipulatione deducta alii detur, nihilominus intererit ftipulatoris, quia ille qui promifit, tenebitur ad intereffe, vel ad poenam, fi pœna fuerit in ftipulationem deducta."

"Per fcripturam verò obligatur quis, ut fi quis fcripferit alicui se debere, five pecunia numerata fit, five non, obligatur ex fcriptura, net habebit exceptionem pecunia non numerate contra fcripturam, quia fcripfit Je debere. Et non folum obligatur quis per verba, fed per fcripturam, et per literas, non ut literæ quidem ipfæ, vel figura literarum obliget, fed oratio fignificativa quam exprimunt litera; fed utrumque cooperatur ad obligationem, oratio fignificativa cum litera."

Thefe expreffions of Bracton are strong and clear; and if he is to be confidered as only borrowing terms from the civil law to exprefs his ideas of the common law, they are certainly conclufive.

The reafon of the rule feems to be truly given by Plowden, in the cafe cited by Mr. Juftice Wilmot; and if a written promife is not within the reafon of the rule, it would feem that the rule cannot apply. In the ancient books no notice is taken of any written agreements but those under feal; and the reafon probably is that in those times by far the greater part of the people could not write, fo as to fign their names to an inftrument. Hence a feal was substituted for a fignature; not because it was a more folemn act, but from the neceffity of the cafe. Witneffes alfo were produced for identifying the feal, and not to add to the obligation of the contract. But the difference between sealed instruments and others, has now become obfolete in practice; for there is no cafe of a contract, where the interefts of third perfons are not involved, in which the defendant may not either at law or in equity, avail himself of the want of confideration. And the most trifling confideration is now held fufficient to take even parol contracts out of the rule of nudum pactum.

In Styles 419, Bunniworth v. Gibbs, chief justice Roll said, “a lit"tle confideration will ferve to ground a promife on." Blackstone, 2 Com. 445, fays, " any degree of reciprocity will prevent the pact "from being nude." And Wilmot, 3d Bur. 1666, said, "the leaft "Spark of a confideration will be fufficient." In Fenner v. Meares,

2 W. Bl. 1271, Judge Blackstone faid, that "the affignment and "other transactions were fully fufficient as a confideration to make "the affumpfit to the affignee binding." And in Hawkes v. Saunders, Cowp. 290, lord Mansfield said, that "a legal or equitable duty is a "fufficient confideration for an actual affumpfit," and that it was "too narrow ground" to fay that "there must be either an immedi"ate benefit to the party promifing, or a lofs to the perfon 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 confcience and equity to pay, that is a fufficient confideration." But even admitting that the rule of nudum pactum applies to written contracts, yet in the prefent cafe there is a fufficient confideration. For according to judge Blackftone," the affignment and other tranf"actions," and particularly the payment of the money by the intermediate indorfer to the defendant, were certainly fufficient confiderations to support the affumpfit.

Upon the whole, therefore, whether this cafe be confidered upon the ground of a promiffory note before the statute of Anne, or upon general principles of common law, the count for money had and reeived, feems to be well supported by the evidence offered.

IX. It is believed that no cafe has been reported in Virginia in which this question has been decided. There are cafes, however, which may poffibly be confidered as affecting some of the principles involved in the prefent enquiry.

In Mackie and Davis, 2 Wafb. 229, it is held that the affignee of a bond may maintain indebitatus affumpfit for money had and received against the affignor, upon principles of common law. There are, in that cafe, feveral affertions and admiffions of counfel which are deemed not to be correct, but are warranted only by a few immature obfervations of fome of the writers fince the ftatute of Anne. One of the counfel feems to confider the custom of merchants as no part of the common law. This has been fhewn to be an incorrect pofition, by the concurrent adjudications of a long feries of years It is faid alfo that "as to promiffory notes, the right of recovery against the ❝indorfer is exprefsly given by the ftatute of Anne, and from this "provifion, an invincible argument is to be drawn in favour" of the defendant, "for if in a commercial country like England, it was ne❝ceffary for the legislature to provide a remedy against the indorfer of "a promiffory note, it is obvious that no fuch right exifted at com"mon law." But if the ftatute of Anne was in affirmance of the law as it stood before, and only enacted to remove the doubts which

had been raifed by lord Holt's decifion in Clerk v. Martin, then this. argument totally fails. And that fuch was the fact is believed to be proved by the authorities before cited.

One of the counfel for the plaintiff confidered the cafe as standing on the fame ground as notes of hand did before the ftatute of Anne; and denies that notes were within the custom of merchants, for which he cites Kyd as an authority; but Kyd fays only "that it was held,” &c. and relies on the cafe of Clerk v. Martin, and the preamble of the ftatute. And in the fame manner, every like affertion in the modern books may be traced up to the fame fource. The only authority which can fupport the pofition is the cafe of Clerk v. Martin. The ftatute of Anne having put the question at reft, no one has taken the pains to examine the real ftate of the law prior to the statute, but one writer after another has repeated the affertion without the least examination. In England it is of no importance whether they are correct or not; but in this country, where few of the ftates have adopted the ftatute, it becomes interefting to know how the law really ftood before. In the cafe of Mackie and Davis, the counfel and the court place much reliance on the privity between the indorfer and his immediate indorfee, and it is evident that they borrowed their ideas from Kyd on bills 114. But Kyd cites no authority for his obfervations; nor are they warranted by any adjudged case, at least so far as they apply to the action for money had and received. Judge Roane fays, "The cafe of promiffory notes will be an important guide, and "therefore it will be proper to fee how they stood previous to the fta"tute which it is fuppofed created the liability of the indorfer of "them." But he proceeds no farther in his investigation than to the "cafe of Lambert v. Oakes, 20th May, 11, W. 3. He fays, this "cafe was decided antecedent to the statute of Anne, and was confe"quently governed by the principles of the common law." If he confidered the cuftom 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 cafe grounded on the custom of merchants: 1ft, becaufe that was the ufual and eftablished form of declaring on promiffory notes in thofe days: 2dly, because there had not at that time been a diftinction difcovered between a promiffory note and an inland bill of exchange. 3dly, Because there never was, either before or fince the ftatute of Anne, a time when an indorfed promiffory note, was not confidered as a bill of exchange; and 4thly, because four, out of the five reporters of that cafe call it a bill of exchange, and even lord Raymond himfelf calls it a bill throughout his whole report, except in the first line, where he calls it a note.

Judge Roane further fays, that " Bonds, in England, are not asfignable, and therefore ftand in the fame fituation as notes of hand did at the time when this cafe was determined." It is believed, upon the authority of the cafes already cited, that there never was a time when a promiffory note payable to order was not affignable, and even lord Holt, fubfequent to the cafe of Clerk v. Martin, admitted, in the cafe of Buller v. Crips, that an indorsement of fuch a note would create a negotiable bill.

In the case of Norton v. Rofe, 2 Wafb. 240, the counsel admit that goldsmiths notes "circulated like bills of exchange" before the ftatute of Anne, and yet it is contended that promiffory notes derived their whole negotiability from the statute. But goldfaiths notes were fimply promiffory notes, and were not more negotiable than the promiflory notes of any other defcription of perfons. Again, the fame counsel obferves, "that though notes of hand, according to the fta"tute of Anne, were placed on the fame ground with bills of ex"change, and of courfe governed by the fame rules, the legiflature "of 1748, by affimilating them in every respect to bonds, rendered "them unlike to bills of exchange in this country, and thereby gave a "convincing proof that it was not their intention to fuffer bonds to "be governed by thofe rules which applied to bills." And in confirmation of his argument he cites Dall. Rep. 23. Judge Roane obferves, "that notes of hand are now affignable in England, and it is "admitted that the affignee is discharged of any equity which existed "against the affignor, unlefs the note was given for an ufurious or " gaming confideration. The reafon of this is, not that the principle "attached to them is a legal confequence of their being made affigna❝ble, but because this rule, for commercial purpafes, applied to bills of "exchange; and the ftatute of Anne, declaring notes affignable in "like manner as bills of exchange, thewed an intention, as it is was fup"posed, to render the former as highly negotiable, and as current in "internal, as the latter were in external commerce. The act of our ❝affembly embraces equally the fubject of bonds and notes, but contains no expreffions tending to induce a belief that the making them affignable was intended for purposes of commerce. The defign certainly was " to make them transferable to a certain extent; the provifion points out "the limits of their negotiability, and fixes a ftrong mark of diftinction "between them and bills of exchange. As to the latter they were always affignable, and the indorfement transferred a legal right to the indorfee. They did not owe this quality to ftatutary pro«visions, and of course they continued within that principle which "had attached to them, and of which they were not deprived by any <ftatute." He thep cites the cafe of Peacock v. Rhodes, Doug. 636,