Page:Federal Reporter, 1st Series, Volume 10.djvu/827

 WHITINO V. WELLINGTON. 815 �gages, -which Pratt had an apparent power to sell, I do not find that his title is rendered void by his giving this unexplained defeasance, so that a honafide purchaser from him, without notice even of the defeasance, can be said to have no title whatever ; for that ia all that I am called upon to decide at present. �Since the argument, a brief bas been handed me, denying the juris- diction of the court, on the ground that this is a "suit founded on contract in favor of an assignee," and that the assignor could not have maintained it. St. 1875, c. 137, § 1, (18 St. 470.) �I have already shown that this is a real action for possession of land. It is, therefore, not within the prohibition. Smith v. Ker- nochen, 7 How. 198 ; Sheldon v. Sill, 8 How. 441, 449, per Grier, J. Besides, the law of 1875 excepts from the prohibition promissory notes negotiable by the law-merohant. It is ingeniously argued that notes were made negotiable by the statute of Anne, and not by the law-mer- chant. It is true that Lord Holt insisted that promissory notes were not negotiable by the law of England, and that a statute became necessary to put them on the footing of bills of exohange. Judge Story says : �"There was a long struggle in Westminister Hall as to the question whether promissory notes were negotiable or not at the common law; for there could be no doubt that they were by the law-merchant; at least, as reo- ognized upon the continent of Europe. Lord Holt, most strenuously, and with a pride of opinion not altogether reconcilable with his sound sense and gen- erallycomprehensive views, maintained the negative." Story, Prom. Notes, § 6. �At present, it is generally admitted that notes which are payable in money at a time certain, to order or bearer, are negotiable by the law merchant. In re Chandler, 1 Low. 478, and authorities there cited. �If it be asked why congress mentions the law-merchant, the answer is that they wished to refer to a recognized standard, and did not iniend to adopt the statutes of those states which have varied the general law in this respect. Since the statute of 1875, it bas been understood that an assignee of those notes which are universally rec- ognized as negotiable, may sue in the circuit courts, though his as- signor could not, Seckel v. Backhaus, 7 Biss. 354 ; Cooper v. Town of Thompson, 13 Blatchf. 434. The exceptions are of notes under seal, (Goe V. Cayuga Lake K. Co. 8 Fjbd. Hep. 534,) and of those payable in something not money, etc. �Judgmeut for the demandant. ��� �