#### * Cornelius Coolidge *versus*Samuel Ruggles.

A written promise to pay to the bearer a sum of money, *“provided the*ship-*arrives at a European port of discharge, free from capture and condemnation by the*British,” was held not to be a negotiable note within the statute of 3 and 4 *Anne.*

Assumpsit on the following writing, *viz.:*—

“ Boston, October 1, 1812.

“ For value received, I promise to pay the bearer hereof, six months after date, nine hundred and eighty dollars, provided the ship *Mary*arrives at a *European*port of discharge, free from capture and condemnation by the *British.*

*“*Samuel Ruggles.”

At the trial before *Jackson,*J.., at the sittings here, after the last March term, it appeared that the said promise was made to one *W. S. Skinner,*the consideration whereof was a certain document, known by the name of “ a *Sawyer*license,” which was intended for the protection of merchant vessels of the *United States*from capture by *British*cruisers, war then existing between the *United States*and *Great*Britain; and that, about two years after receiving the said note, the said *Skinner*transferred and delivered the same, with other effects, to the plaintiff, to be by him collected and passed to the credit of *Skinner,*in an account then open between him and the plaintiff, and upon which *Skinner*was indebted to the plaintiff. The signature of the defendant was admitted, and the plaintiff proved that the said ship *Mary,*mentioned in the said note, arrived at a *European*port of discharge, and there delivered her cargo in safety, without any capture or condemnation whatsoever.

A verdict was returned for the' plaintiff, under the direction of the judge; and the defendant tendered a bill of exceptions as at common law, which was sealed by the judge. The question chiefly insisted on at the argument, and which alone was considered by the Court, was, whether the plaintiff could maintain the action, as assignee of the note sued.

*Hubbard*for the plaintiff.

The *S dicitor-General,*and *Cooke,*for the defendant.

*349Parker, C. J.,

delivered the opinion of the Court. The only question to which we have turned our attention in this case, is, whether the written promise declared on is negotiable ***in its nature, so that an action may be maintained upon it in the name of the plaintiff, who is assignee. And we are all of opinion that it is not so negotiable, on account of the contingency on which the payment of the money is made to depend.

All promises to pay money, being at common law *dioses in action,*were unassignable. It is only by virtue of the statute of 3 and 4 *Anne,*c. 9, that certain descriptions of them are assignable, so as that the property and the right of action vest in the assignee.

The paper declared on does not come within the description of notes made assignable by that statute. For it has been declared by frequent judicial decisions, that a note or bill, to attain that character, must be payable in money absolutely. A note or bill payable to bearer stands upon the same ground as a note payable to order. The only difference is in the mode of transfer. The latter must be by endorsement; the former may be by delivery; but both must contain a promise to pay money unconditionally.

The cases which show that an action may be maintained by an assignee, in his own name, are all where there has been, after the assignment, a promise to pay to the assignee; and to this effect the case of *Fenner*vs. *Mears,*2 *W. Black.*1269, is unquestionably good law ; and several cases have been decided by this Court upon the same principle. In this case, no promise is shown to pay to the assignee.

Cases were cited to show that the promise in this case is assignable in equity. But the difference between that, and an assignment un ler the statute of *Anne,*is too well known to need expía nation. The verdict is set aside, and

*A new trial granted,*
      *(a)*

*Bayley on Bills,*c. 1, § 6, pp. 16—22,5th *Land.*ed.