Page:United States Reports, Volume 1.djvu/38

 Rh  Chief Jutice. The quetion in this cae is, whether Hughes can have the ame defalcation againt Wheeler, which he could have had againt Banyton, if this had not been aigned?

It was contended for the Plaintiff, that bonds were negotiable as inland bills of exchange.

It was alo 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 tatute of 3 and 4 ''Ann. c.'' 9.

It is plain however that the act was drawn from the tatute, for in many places it follows it, , through in others it varies. This hews the legilature intended in thoe intances, to vary the law. Bills in England were negotiable before the tatute; notes were only evidence of a debt; the tatute was made to put them on the ame footing with bills.

The quetion is whether the act of aembly has done the ame as the tatute. He then compared the act with the tatute, to hew that it was drawn from the tatute.

The act however ays, “for the encouragement of trade, commerce and credit;” the tatute adds, “and to make notes negotiable in the ame manner as bills.” This is a material variance, and it carried through the act.

The Defendant relied on the words in the act entitling aignee to recover the money, that hould appear to be due, in like manner as obligee could.

Here is the ame variance as before; for, by the tatute, the aignee is to recover what hall be due, “in like manner as indoree of a bill of exchange.”–Had the act purued the tatute in thee repects, or expreed the ame meaning in other words, the plaintiff would be right.

What hall appear to be due at the time of the aignment, has been differently applied by the oppoite council;—The Plaintiff’s council contended, that it meant what appeared to be due on the bond; o that, if the bond hould be paid, yet if payment was not indored, the aignee might recover the whole.

The Defendant contended, that the claue related only to the manner of proceeding, enabling the aignee to ue in his own name.

We have conidered this matter very deliberately, and are clearly of opinion, that the variance between the act and the tatute, was intentional, not accidental.

An argument of force with us, not mentioned by the defendant, aries from the wording of the act.

The words “o much as hall appear to be due,” relate to the time of trial, and not to the time of the aignment;−they are in the future tene. It