By the Court.
delivering the opinion.
[1.] The release of the surety, and cutting his name off this note, does not invalidate it. A great deal of the doctrine of the English books, relative to the alteration of bills and notes, arises out of the policy of the Stamp Acts of Great Britain. Those Acts are not of force in this State. The policy of the English Stamp Acts, is revenue. The more contracts of this sort, the more duty; hence the rigidity of the rules as to alterations. Alterations require new contracts, and new contracts bring larger revenues. But aside from these Acts, the rules upon this subject are very strict. Upon principle, they ought to be so. Parties ought to be held to abide their contracts, as they make them. The written contract is the evidence of what are the rights, and what the obligations of all who are parties to it. If one or more of the parties,
[2.] The presiding Judge held, that an estate in remainder could not be created in promissory notes, and upon that holding, error is assigned. This Court has hold, differently. A treatise might be written upon this question, with propriety. The origin, progress and present condition of it, are fruitful themes for the display of judicial learning. Of this, I am neither ambitious nor capable.
Without putting a construction upon this marriage settlement, (for that is not made necessary by this record) I shall content myself with transcribing what this Court has said, through my brother Lumpkin, in Kirkpatrick vs. Davidson, (2 Kelly, 301.) “Anciently, there could be no limitation over of & bhattel, but a gift for life carried the absolute interest. Then a distinction was taken between the use and the property, and it Was held, that the use might be given to one for life, and the property afterwards to another, though the devise over of the chattel itself would be void. It was finally, however, settled, that there was nothing in that distinction, and that a gift for life of a chattel, was a gift of the use only, and the remainder over was good as an executory devise. And the general rule, as now established by numerous decisions, is, that if a man, either by deed or will, limit his chattels to A for life, with remainder over to B, the remainder is good.” If it were conceded that such remainder is bad, directly by deed, yet, there would then be no doubt of its being good, when settled by deed of trust. Gilb. on Uses and Trusts, by Sugden, 121, note 4. Hargroves, note 5 to Coke Litt. 20, a. And this doctrine extends to choses in action, as well as other chattels. 1 Cruise’s Dig. tit. 12, ch. 1. Hobson vs. Trevor, 2 P. Williams, 191. Wright vs. Wright, 1 Vesey, Sr. 411. Hill on Trustees, 44. Foley vs. Burnell, 1 Bro. C. C. 274. Hastings vs. Douglass, Cro. Car. 343. 10 Johns. R. 12. 2 Serg. & Rawle, 59. 1 Burrow, 284. 1 Bailey’s S. C. R. 100. 2 Kent, 352. 2 Black. 398. 13 Conn. 42. Cro. J. 59. 1 Dana’s K. R. 237. 2 Vern. R. 59. 5 Johns. C. R. 334. 2 Day. R. 28. Ib. 52. 2 Munf. 479. 4 McCord, 427. 2 Hill, S. C. 443.
Let the judgment be reversed, on the last assignment.