Page:United States Reports, Volume 1.djvu/454

Rh 

1789.

been held, that Bonds and Specialties under hand and feal, and Notes in writing, figned by the party who makes the fame, whereby fuch party is obliged, or promifes to pay unto any other perfon, or his order, or affigns, any fum of money therein mentioned, are not by law affignable or indorfeable over to any perfon, fo as that the perfon to whom the faid Bonds, Specialties, Note or Notes, is or are affigned, or indorfed, may, in their own names, by action at law, or otherwife, recover the fame,&c.” 1 State Laws, 77.

This, then, is conclufive as to the operation or effect of the affignment, of a Bond, or the indorfement of a Note, previoufly to the paffing of the Act ; for, no affignment, or indorfement, could take place by law, though it might in equity ; and, the affignee or indorfee, could not, in any cafe, fue in his own name. The Act, however, afterwards provides for fuch affignment and indofement toties quoties : It alfo declares, that the perfon or perfons to whom the affignment of indorfement is made, may, in his, her, or their name, or names, fue at law, “ for the recovery of the money mentioned in the Bond, Specialty or Note, or ʃo much thereof as ʃhall appear to be due at the time of the affignment, in like manner as the perfon or perfons to whom the fame was, or were, made payable, might, or could, have done;” and that “ the affignors fhall not, after the affignment, have power to releafe any of the debts or fums of money really due by the faid Bonds, Specialties, or Notes.”

The queftion before the Court muft be decided upon a juft conftruction of the parts of the act of Affembly, to which I have juft referred.

Throughout the whole of this Act, Bonds and Promiffory Notes are placed exactly on the ʃame ƒooting ; except, indeed, that Bonds and Specialties are to be affigned under hand and feal, and in the prefence of two or more credible witneffes:  How, then, can the Court make any diftinction or difference between affignees of the one, and indorfees of the other? They certainly may both fue  in their own names, and refpectively recover the money mentioned  in the Bonds or Notes, affigned or indorfed, or fo much thereof as fhall be really due thereon, in like manner as the obligees, or payees, could have done ; but, furely, this feems to be equally clear, that neither can recover more than what was really due at the time of the affignment or indorfement ; in other words, no more than the original payees could have done prior to the tranfer.

Before this act was paffed, it appears, that actions by the payee of a Promiffory Note, were not maintained, nor can they fince be maintained, otherwife than be extending the Engliʃh ftatute of 3 & 4 Ann. c.9. ʃect. 1. Actions upon Promiffory Notes were probably brought here, foon after the paffing of the ftatute, by attornies who came from England, and were accuftomed to the forms of practice in that kingdom, but did not, perhaps, nicely attend to the difcrimination with regard to the extenfion, or adoption of ftatutes. I have