April 3rd (Absente Robinson, J.)

On the demurrer in this action to the evidence of the plaintiff, the Court, having considered the arguments on both sides, and particularly those on the part of the demurrant, are of opinion that the first count is defective and the second good. They are also of the opinion that the specialty and indorsement given in evidence were rightfully, and that they are collateral to the suit. That in the assignment the assignor had expressed that he had received value equal to the sum mentioned in the condition of the obligation, which accords with the case in [1] Dali. 429, 430 cited by plaintiff.

As to the second point urged by demurrant, to wit that if an action lay, it ought to be covenant, the Court said they do not consider the assignment as the ground of the suit, but as collateral to it. As to the point that the count for money had and received was an improper one, the Court under the circumstances of the case think otherwise, that the indorsement made on the back of the bond was an admission by the assignor that he had received so much money for the use of the assignee, although this is a contract for a carriage and no evidence has been given *106that the assignment was in full therefor. The Court conceive that the second count is warranted by the case of Ward and Evans, 6 Mod. 36, and that the objection to the second count was thereby well answered. It has been determined in two cases in the State of Pennsylvania ([1] Dali. 23 and 443) that the covenant implied by the word “assign” extends only to this, that if the assignee received the money it was to his own use, and if the obligee receive it, it was for the use of the assignee. The Act for Assigning Specialties is in nearly the same words with the Pennsylvania Act. The remedy here taken is not under the Act of Assembly [1 Body Laws 87] but at common law, 2 Bl.Comm. 464, 469. The remedy here taken is sanctioned by the common law and grounded on its principles. The defendant is a person who receives something for which he makes a payment, and, if that payment fails, he ought to make such compensation as will make that good the consideration for which has failed. In this case it seems to have been the opinion of the assignor, by his own conduct, that the obligor was not good for the money. By the evidence it appears to the Court, that the assignor delivered the bond himself into the hands of the counsel who proceeded on it, and therefore the argument of the demurrant on the want of due diligence by the plaintiff in his proceedings is fully answered. As to the fourth point, that is answered by the Court’s anáwers to the other points. The assignment was undoubtedly received in discharge of the debt, but at the same time created an obligation on the defendant to discharge the amount to the plaintiff if the consideration failed.

The legislature intended to encourage trade and commerce by making bonds and bills assignable. The difference between bills of exchange in England and the bonds and specialties made assignable in this country is but nominal. It was contended by the counsel for the plaintiff that the similarity of this case with cases of promissory notes in England was very striking; they were certainly not aware that this doctrine would impose upon them the same proceedings and principles as are incident to promissory notes and bills of exchange in that country. However, the Court are of opinion that under the circumstances of the case there was sufficient to warrant the delay of the proceedings by the plaintiff against the obligor; and that judgment be given for the plaintiff on the second count.

Clayton, J., accordant.

The docket entry is thus:

Demurrer on the part of defendant to the evidence, with a conditional verdict after annexed on solemn argument of *107their demurrer by the counsel in this cause. The Court are of opinion against the demurrant on the second count in the declaration in this cause and therefore give judgment in favor of the plaintiff on the second count for the sum found in the conditional verdict of the jury as annexed to the demurrer aforesaid, to wit the sum of forty pounds eleven shillings and fourpence with costs, and it is considered also by the court that the said plaintiff be in mercy for the defective count as first stated in the declaration aforesaid and the said John Freeman do go thereof without day etc.