At common law, bonds are not assignable; the Act of Assembly has made them so and intended they should be to answer the purposes of commerce on the footing of promissory notes in England. Though in England an assignment of a bill payable to J. S. or bearer be no good assignment to charge the drawer with an action on the bill, yet it is good between indorser and indorsee, 1 Salk. 125. ([Note.] This not so — a transfer with [out] indorsement of such a bill is merely a sale and therefore the indorser not liable — if indorsed the indorser becomes a new security. 7 Selw. 364n., 45.)
In assumpsit, deeds and other writings under seal may be given in evidence, not as the immediate foundation of the suit, but leading to it. 1 Pów.Con. 219, 220, 1 Dali. 429, 430 (same point.) The courts [of the] United States should harmonize in their determination upon points accompanied with an identity of circumstances. Common Pleas, Charleston (4 AmuMus. 275) determined in a similar case for the assignee against assignor.
Vide “Covenant” 13.1 This South Carolina decision overruled semble there.
Afterwards on April 3rd, following Read, C. J., delivered opinion of the Court :
The first count is defective, the second good. We also think the specialty and indorsement were rightly given in evidence, they being collateral to the suits. In the assignment are the words value received which is therefore like 1 Dali. 429, 430.
Money had and received is the proper count because the assignment admits the receipt of money. The objection to this count is well answered by Ward v. Evans, 6 Mod. 36. (The assumpsit and contract was like the receipt and bargain in 1 Selw. 692, 693, where horses were considered as money by the parties, and this evidence of consideration held no variance by the court. By fourth objection it seems one of the witnesses had proved the reception of the bond as part pay. If a horse may by the parties be reckoned as money, why not the carriage too?)
*491True, it has been determined in Pennsylvania in 1 Dali. 20 and in ibid. 44B, that the covenant implied by the word “assign” extends only to this, that the assignee shall have the full benefit of the obligation. This was their construction of their Act of Assembly which is nearly the same with ours [1 Del.Laws 117]. But here the remedy sought is at common law, and the principle there is, if defendant receives something and gives a consideration which afterwards fails, he must refund, 2 Bl.R. 464, 469.
By the evidence it appears that the assignor himself delivered the bond into the hands of the attorney who proceeded on it, but without effect, which is an answer to the argument concerning a want of due diligence.
The legislature intended to encourage trade by making bonds and bills assignable. The difference between bills of exchange in England and bonds and specialties made assignable in this country is but nominal. When the counsel for plaintiff mentioned this, they were not aware that they had thereby admitted a similarity in the law with regard to delay. However, the Court are of opinion there was sufficient to warrant the delay against the obligor here. Let judgment be entered for the plaintiff on the second count.
(See the docket entry of the judgment.)