After consideration, the unanimous opinion of the Court was delivered, by the Chief Justice, who, having stated the case, proceeded as follows :
McKean, Chief Justice.— The first inquiry, which it is necessary to pursue, is, where was the note in controversy made, in Pennsylvania, or in New York? For, whether the act of assembly, relating to 'promissory notes, is to be introduced or excluded, in forming our judgment, depends upon the answer, that shall be given to this preliminary question.
It appears, then, that although the note was signed in Philadelphia, it was not delivered in Pennsylvania; but that the delivery was made by the order or direction of Henry Knox, the payee, to William Duer, in the city of New York, in pursuance of a contract, and for a valuable consideration. It is certain, that the bare signing of a note will not give it efficacy. It may be signed, with a view to deliver it to the payee, on his complying with some previous stipulation ; so that, in case of a refusal, it would become useless, and might be cancelled by the drawer. A note- is not, therefore, obligatory and valid, until it has been actually delivered to the party, for whose use it is drawn ; and as it receives its life, existence and negotiable character, at the place where it is so delivered, the law of that place must regulate all its subsequent operations. Hence, we consider the present note, as having taken effect in New York, as being liable to the lex loci of that state (whether depending on positive statutes, or the adoption of the general commercial law), and as exempt from the provisions of our act of assembly, by which an indorsee is liable to all the equity that the maker could enforce against the payee.
The note having been thus paid or delivered in New York, was deemed, by the law of that state, to be as negotiable as a foreign bill of exchange ; and it is the nature of a hill of exchange, when indorsed in blank, to pass from hand to hand, by mere delivery, like bank-notes payable to bearer. It is true, that the negotiability of the bill may be restrained by the qualified terms of an indorsement; but there must be express words to produce such an effect. In the present case, there was no restraint upon *the negotiability of the note ; and in a due and fair course of circulation, it was delivered to Duer, he sold to a bond fide purchaser, that purchaser sold it to others, until at last, it became the property of the plaintiff. While, however, it was in the hands of Duer, an attachment issued at the suit of his creditors, and the maker of the note was summoned as garnishee.
And here the second great question arises, whether, under these circumstances, the money, due at that time, but not payable until long after, on a negotiable note, could be attached as the property of Duer, so as to defeat a subsequent purchaser, bond fide, and for a valuable consideration ? In England, I believe, there would be no hesitation in deciding, that it could not. On the paper credit of that nation, much of its power and prosperity (if not its very existence) will be found to depend ; and therefore, everything that tan impede or injure the circulation of bills of exchange, promissory notes *54and bank-notes, is anxiously guarded against. The situation of this country, however, is not the same ; so that the legislature of Pennsylvania has not found it necessary to hold in equal respect the negotiability of promissory notes. When the act of assembly was passed, promissory notes were little used; they were given for small debts; and they seldom passed out of the hands of the payee, before payment. The object of the act was, simply, to enable the indorsee to sue the maker in his own name ; but in giving this benefit, it was expressly provided, that he should recover no more than was due at the time of the indorsement. This, therefore, lets in the equitable claims of the maker against the payee, when he is sued by the indorsee ; and even in England, there is no doubt, the consideration of a note may be inquired into, in an action between the payee and the maker.
The present case, ho'wever, arises from a commercial transaction in the city of New York, where the note was regarded in the light of a foreign bill of exchange. There is no judgment, or authoritative dictum, to be found in any book, that money due upon such a negotiable instrument, can be attached before it is payable; and in point of reason, policy and usage, as well as upon principles of convenience and equity, we think, it would be dangerous and wrong to introduce and establish a precedent of the kind. To adjudge that a note, which passes from hand to hand as cash; on which the holder may institute a suit in his own name; which has all the properties of a bank-note, payable to bearer; which would be embraced by a bequest of money; and which -is actually in circulation in another state ; should be affected in this way, by a foreign attachment, would be, in effect, to overthrow an essential part of the commercial system, and to annihilate the negotiable quality of all such instruments.1
It has been said, that the purchaser of the note (toties quoties) was bound to inquire into its validity, by applying to the maker before he *63l bought it. But I cannot perceive the propriety, nor, indeed, *the utility, of imposing such a duty in this, or any similar case. The distance between the place of the maker’s residence, and the place of the note’s circulation ; and the frequency of the transfers of negotiable notes, payable at long dates, would render such a course highly inconvenient, if not impracticable ; while the information to be derived from it, could only assure the purchaser, that an attachment had not issued at the very moment of his application ; but could not protect him from an attachment which might issue in less than an hour afterwards, and sooner than his purchase could be accomplished.
Upon the whole, we are, unanimously, of opinion, that the attachment cannot be sustained ; and that the bearer of the note, on the day of payment, is entitled to recover the money from the drawer. The judgment for the defendant must, therefore, be reversed; and judgment entered for the plaintiff.
Smith, Justice.— The opinion of the court is certainly unanimous on the points that have been stated; but I wish it to be remarked, that my concur - *55renee rests entirely on tbe particular circumstances of this case. The delivery in New York, which gave effect to the note, and introduced the law oí that state as our guide, is exclusively the ground of my assent.
Addison, Justice.— To me, it would have made no difference, had the delivery and circulation of the note been entirely in Pennsylvania. It is expressed in commercial form, and was negotiable upon commercial principles. On general grounds, therefore, as well as for the particular reasons that have been assigned, I think, the judgment of the court is right: and I should be surprised to find any doubt upon the subject, in a great commercial city like Philadelphia.
Shippen, Justice.— It is evident, that on the abstract question, the court do not agree ; nor is it necessary that they should, as we are unanimous in' the judgment pronounced, upon the grounds peculiar to this case. If, however, I were called upon to give an opinion, I should incline to the one expressed by Judge Addison.
The judgment below reversed ; and judgment to be entered for Daniel' Ludlow, the plaintiff in error. (a)
In Kieifer v. Ehler, 18 Penn. St. 888, it was determined, (hat a promissory note, not yet due, maybe attached in the hands of the maker; but that such attachment will not prevail against a bond fide indorsee, before maturity, wiihout notice. And see Hill v. Kraft, 29 Id 186.
A question arose, whether this court should enter the judgment for the plaintiff ■ m error, or merely remit the record to the supreme court, that the judgment might be entered there ? In the present case, a decision was immaterial, as Mr, Bingham, being a mere stake-holder, was ready ^ at once, to pay the money, on the opinion which had been delivered; but as a precedent, it was thought important, and the court kept the point under advisement until the next adjourned session.