lis pendens, it applies to a negotiation in London, or Amsterdam, 1799. as well as in New-York; to a bill of exchange, or any other contract, as well as to a promissory note; and to a negotiation through a hundred persons merely by delivery, as well as to such a negotiation by an individual. It is obvious, therefore, that the credit and facilities of commerce would be destroyed, should such a doctrine prevail.

The consequences of allowing the attachment as a bar would, likewise, be peculiarly unjust and injurious to the present holder of the note, who did not take it on the credit of Duer, and to whom Duer is in no wise bound. If, indeed, payment to Fish is a good payment of the note, it is a payment by the drawer; and, of course, it extinguishes all remedy against the indorsers, whose undertaking is merely a collateral one, to pay on the drawers default: so that the plaintiff, the last indorsee, taking the note, perhaps, on the credit of the indorsers, more than on the credit of the drawer, is deprived of every security, without any imputable laches on his part. But a fair holder, for a valuable consideration, of a bill of exchange, or note payable to bearer, is protected even against the true owner, who has been robbed, or has lost the instrument. 1 Burr. 452. 3 Burr. 1516. 1524. 1 Bl. Rep. 485; 4 Bac. Abr. 705, 6. The attachment cannot surely amount to more than a legal assignment: let it, therefore, be supposed, that Duer had assigned the note to Fish, with notice to Bingham; still the plaintiff, a purchaser of a negotiable instrument, for a valuable consideration, without notice, would be entitled to recover. Or let the stronger case be supposed, that on such an assignment, the note itself had been delivered to Fish, but that he had lost it, or had been robbed of it, that Duer had found, or had stolen it, and afterwards had sold it, the purchaser would be entitled to receive the money from Bingham, and not the assignee. The rule is exemplified in the fullest manner, by considering the note as payable to bearer; for, unless Duer keeps it till it is due and payable, he is not the bearer contemplated by the contract; there is no engagement to pay him at all. Though, therefore, our law permits the attachment of debts due and payable, it is manifest that unless Duer held the note till it was actually due, it could not be payable to him, and if not payable to him, it could not be attached as his debt. If the instrument of contract had expressly provided, that something being done by a third person, the debt should become the property of that third person, when the act was done, Duer's interest must surely escape, and nothing would remain upon which an attachment against him could operate. Though not by the words, yet by the nature of the contract, the same effect is produced: for, a third person being the bearer on the day of payment, and presenting the note, at the place of payment, the contract is to pay him; and every antecedent transmissible interest, of which Duer was possessed, is effectually extinguished.

For

1799.

For the defendant, E. Tilghman and Lewis* contended tha Fish, having attached, while the note was in Duer's hands, obtained a legal lien upon the money mentioned in it; although the money was not then due from the drawer, nor had the note ever been in the possession of the attacher; and that having pursued his lien, without laches, he is now entitled to the money. The general principle of the attachment law, is clearly in favour of Fish; and his claim must prevail, unless the plaintiff in error shows, that the note was a species of property not liable to an attachment.

In attempting to maintain this exemption from attachment it has been urged, that the note is subject to the laws of New-York, where promissory notes are upon the same footing with bills of exchange; and, therefore, it was not attachable: but the fact, and the inference deduced from it, are alike denied. The note was executed at Philadelphia; it is dated there; it was there indorsed by Henry Knox; and it is payable at the bank of the United States. It is true, that the note was delivered to Duer in NewYork, agreeably to Bingham's contract; but Duer well knew that it had been previously executed in Philadelphia, and by the delivery in Philadalphia, Knox's indorsement took effect. An express stipulation on the face of the note, made it payable at the bank of the United States; and it is an established principle, that a contract for the payment of money is to be governed by the laws of the place, where it is payable. Prac. in Chan. 128. 2 Burr. 1083, 4. 1 Bl. Rep. 258, 9. It is not a sufficient answer, that the bank of the United States is not permanently fixed at Philadelphia; for, the parties to the contract, in making it the place of payment, considered it as at Philadelphia; and there could be no idea of a removal of the bank, while Philadelphia continued the seat of the federal government; inasmuch as it is expressly provided, that the officer at the head of the treasury department shall be furnished with weekly statements of the affairs of the institution, and should be entitled to inspect the general accounts in relation to such statements: 1 vol. 293. sect. 7. art. 16. (Swift's edit). The place of payment was, evidently, fixed for the drawer's convenience: and although, if there is a place appointed for payment, a personal application need not be made to the drawer of a note (2 Hen. Bl. Rep. 509.) yet, stipulating that payment should be made at the bank of the United States, shows that the law of Pennsylvania was to furnish the rule. for construing the legal effect of the contract.

Again, it is urged, that the note was in the nature of an escrow till it was delivered to Duer at New-York; and that receiving its life in New-York, it must be governed by the law of the place of

Tilghman having embraced in his argument on the present occasion, all that had been suggested by Lewis in the Supreme Court, the latter declined entering again into the discussion on the writ of error.

its existence. But the note is payable in four years from its date; 1799. and, therefore, even considering it in the nature of an escrow, when the condition was discharged, it took effect, with relation to its date and execution in Philadelphia. There is nothing to show, that with regard to this note, more than with regard to any other note executed and payable in Philadelphia, but delivered to the indorsee in New-York, it was in the contemplation of the parties, that New-York should be the scene of negotiation. It is in vain for the counsel to assert, that it could not have been put in circulation at New-York, with a view to the laws of another state; for, the date of the note, and the place prescribed for its payment, are premises from which the legal inference is insurmountable, that the law of Pennsylvania was contemplated. Let it be supposed, that on the day of payment Bingham had tendered the money at the bank of the United States, when no person was ready to receive it: the tender, if legal, would discharge him from any claim for future interest; but by what law would the validity of the tender have been tried? Or suppose, that the note had been invalid by the law of Pennsylvania, could it have been rendered valid by reference to the law of New-York?

It has been objected, however, as another ground of opposi tion to the lien of the plaintiff in the attachment, that even an attachment cannot prevail against the bona fide holder of the note, for a valuable consideration, and without notice: while it remained in the hands of Duer, the adverse counsel admit, that it was subject to an attachment; but they contend, that the defendant in the attachment might defeat the lien, whenever he pleased, by the mere delivery of the note. It will hereafter be shown, however, that the concession and the argument cannot be reconciled. But the corner-stone of the defence is, that notes of this description are to be governed only by what appears on the face of the paper; and this, undoubtedly, is the law in England (whence the authorities have been adduced) except as to attachments. In Pennsylvania, however, the face of the paper is not the criterion, on which a bona fide purchaser is to judge. The distinction arises on this ground, hat in England the holder of a promissory note is not considered as an assignee, but in Pennsylvania he is so considered; Doug. 614. and although an indorsee in England is discharged from all equitable circumstances existing between the original parties, which do not appear on the instrument itself, an assignee of a note, in Pennsylvania, is bound to resort to the drawer, to know whether there is any defence'equitable or legal. Showing, then, that the face of the note is not the criterion, we destroy the very foundation of the plaintiff's claim. That the indorsee takes the note subject to all the equity between the drawer and indorser has been expressly adjudged. 1 Dall. Rep. 442, 3, 4. The negotiability of the note is qualified, not absolute. The first indorsee, indeed, is as innocent, as any subsequent one;

and

1799. and if the equity of the drawer's defence against the indorser is to affect the first indorsee, there can be no just reason why it should not equally affect the second: the face of the note is the same in the one case, as in the other; the second indorsee can recover no more from the drawer than the first; and it may as fairly be contended that a payee could defeat an attachment by indorsement, as an indorsee by delivery.

It is asked, whether it is reasonable to expect that the purchaser of the note in market, should inquire after attachments, or liens against Duer, whose name does not appear on the note? And yet the plaintiff himself relies on the supposed terms, on which the note was delivered to Duer in New-York. But the fact is, that the note came to Duer for a valuable consideration, as a common note, not merely as an accommodation note; and our argument is, that the face of the note affording no criterion to protect the holder from a set-off, or attachment, against Duer, it was incumbent on the person purchasing it, to apply to the drawer for information, not, particularly, as to the right of Duer, but, generally, as to the validity of the note.

The adverse counsel urge, that if payment by Bingham to Fish will be good, then the note will be extinguished, and the holder can have no remedy against any of the indorsers. But might not each indorser recover from the person with whom he dealt, in an action for money had and received? At all events, each party to the note runs his risque; it is nothing more than the risque run in the case of notes given in England, upon usurious and gaming contracts; nor is it harder than the operation of the principle in McCullough v. Huston, which would have produced the same decision, had there been twenty indorsers on the note then in controversy.

That Fish's right could not be stronger, as plaintiff in an attachment, than as the assignee of Duer, is a position not true to every intent. For instance; Fish might attach the debt before it was due. Again; in the case of an assignment he would be guilty of laches, and ought to answer, for not taking possession of the note, or for suffering it to be lost, or stolen; but from the very nature of the attachment, a hostile process against Duer, Fish could not obtain the possession of the note, and the law will aid and supply the want of it. Nor is it correct to say, that Bingham was a debtor to no man till the day of payment; and then only to the bearer of the note; for, the obligation of the drawer was coeval with the execution of the note, which was debitum in præsenti, solvendum in futuro; and a debt of that description is clearly attachable. 2 Dall. Rep. 211. Though the drawer is guilty of some negligence in making a payment, without indorsing it on his note; yet, even in his case, it has been shown, the payment will be allowed in Pennsylvania against a bona fide holder, without notice: and, surely, the case against

the

the garnishee is much stronger, the plaintiff in the attachment 1799. being in the prosecution of a legal right, and founding his demand against the garnishee upon the positive provisions of the act of assembly, which, though it is in some respects analogous, in others extends further than the custom of London. The words of the original act speak only, it is true, of goods, chattels and effects; but they were always construed to include debts, and even lands; and the supplement expressly extends to the goods, chattels, monies, effects, and credits of the defendant: 2 vol. 733. Dull. edit. The attachment, ipso facto, secures the effects attached, to abide the judgment of the Court: 1 vol. Penn. Laws, p. 60. Dall. edit. The words of the domestic attachment law (a law made in pari materia, and, therefore, to be regarded on the present question of construction) expressly recognise "lands, goods, chattels, and effects," as objects of attachment; and among the powers vested in the auditors under such an attachment, they are authorised "to 66 grant and assign, or otherwise to order or dispose of, all or any "of the debts due, or to be due, to and for the benefit of the said "defendants [in the attachments] to the use of their creditors. "And, that the same grant, assignment, or disposition, of the "said debts so to be made, shall vest the property, right, and "interest, thereof, in the person or persons, to whom it shall be "so granted, assigned, or ordered, by the auditors; so that such 66 assignees may sue for and recover the said debts in their own names, and detain the same to their own use. And that after "such grant, assignment, or disposition, made of the said debts, "neither the defendants, nor any other to whom such debts shall "be due, shall have power to recover the same, nor to make any "release or discharge thereof." Ibid. s. 2. 7. p. 194, 5, 6, 7. The domestic attachment has, indeed, the effect of a bankruptcy; but if the plaintiff's doctrine is true, a bankrupt's agent may effectually, by mere delivery, pass away notes indorsed in blank.

66

In Carthew 26, it is said, that bills of exchange are attachable, according to the custom of London; and the adverse counsel admits, that the note was attachable, while it remained in the hands of Duer. But if so, how can the attachment be dissolved, without appearing to it, on the terms of the law? There is no laches on the part of the plaintiff; and if the note could be attached at all, it must be effectually attached. It is idle to allege, that the success of the attachment must depend on the note's remaining with the defendant, till the attachment had run its course. Suppose a judgment had been obtained against the garnishee before the note was due, with a stay of execution till it became due, could this lien be defeated by a subsequent sale and delivery of the note? Suppose a suit instituted by the indorsee of a note against the drawer, and the note afterwards lost, or stolen; would the claim of a bona fide purchaser, in such cases, supersede the suit, or prevail against the plaintiff in it, after he had

obtained