Clary v. . Allison

Counsel

E contra , for the plaintiff, it was argued that whoever is in the possession of money is the proprietor, and especially if he claim to be the proprietor for his own purposes; that as to the writing making it to be Governor Blount's, there was nothing in it — that writing is a promise to Allison, upon a consideration proceeding from him (namely, his depositing the money), to pay to Governor Blount; and if the promise be broken, the action for the breach must be brought by Allison; (112) that before the passing of the act of Q. Anne, stat. 3 and 4, ch. 9, and our own act of Assembly 1762, ch. 9, the plaintiff could not declare upon a promissory note; and these acts only enable the holder to declare upon such notes as are rendered negotiable by them, not upon notes not negotiable as a note at this day for the delivery of a specific article of tobacco, pork, etc.; and no notes are negotiable by these acts but such as are independent of any contingency; but here, as the time of making this note, it depended upon a contingency whether the money mentioned in it would ever become payable to Governor Blount, and if it is not a negotiable note at the time of its making, it can never after becomes so by any ex post facto circumstance.