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dorsed before and after they become due. Taylor v. Mather, 3 T. R. 83, note; Banks v. Colwell, Id. 81; Brown v. Davies, Id. 80. But it does not follow that a bill or check is not negotiable merely because it is ante-dated, Boehm &c. v. Sterling &c. 7 T. R. 419; or post-dated, Passmore v. North, 13 East 517. Nor can it be maintained that a person taking a check over-due has never a better title than the person from whom he receives it. Rothschild v. Corney &c. 9 Barn. & Cress. 388, 17 Eng. Com. Law Rep. 402; Walker v. Geisse, 4 Whart. 256, 7.

In the United States where an endorsee has taken a bill or note after it was dishonoured, a defence has often been deemed available against him which would not have been sufficient if the same had been taken before it was due. Freeman v. Haskin, 2 Caines's Rep. 372; Hendricks v. Judah, 1 Johns. 319; Sanford v. Mickles &c. 4 Id. 227; Losee v. Dunkin, 7 Id. 70; Loomis v. Pulver, 9 Id. 214; Havens v. Huntington, 1 Cow. 396; Ayer v. Hutchins &c. 4 Mass. 370; Cromwell &c. v. Arrott, 1 S. & R. 183; Barnet v. Offerman, 7 Watts 130; Reakert v. Sanford, 5 W. & S. 170; Snyder v. Riley, 6 Barr 168.

In several cases decisions were made which are not to be reconciled with the doctrine now established in England. Thus in New York evidence was admitted of a set-off existing against the payee before his endorsement. O'Callaghan v. Sawyer, 5 Johns. 118; Ford v. Stuart, 19 Id. 342. In Massachusetts, in one case there are expressions unfavourable to allowing such a set-off, Holland v. Makepeace, 8 Mass. 422; but in a subsequent case it is decided that a set-off may be allowed. Sargent &c. v. Southgate, 5 Pick. 312.

These decisions proceed on the ground that a bill or note endorsed after it becomes due is taken by an endorsee subject to all the equities. A better expression would be that he takes the bill subject to all its equities. Cresswell, J. 4 Man. & Grang. 106. He is liable to such equities only as attach on the bill or note itself and not to claims arising out of collateral matters. Burrough v. Moss, 10 Barn. & Cress. 558, 21 Eng. Com. Law Rep. 128; Stein &c. v. Yglesias &c. 1 C. M. & R. 565.

For example, if the note be released or discharged, the plaintiff, under such circumstances cannot make a title to it. But a set-off of a cross demand is not an equity; it is a mere collateral matter. Whitehead &c. v. Walker, 10 M. & W. 694.

In North Carolina, the extent to which, at law, the doctrine that an assignee is affected by the liabilities of his assignor, has been carried, is that he shall be thus affected in respect of

such liabilities as existed at the time of the assignment and constituted a demand which was then available as a defence at law. Haywood v. McNair, 3 Dev. 231; 2 Dev. & Bat. 283; Turney v. Boggarly, 11 Iredell 334.

The rule in Maryland is like that of the English courts. Annan v. Houck, 4 Gill 332. So it is likewise in Pennsylvania. The supreme court of this state having established, ante, p. 171, that the endorsee of a note takes it, if, in the usual course of trade, discharged of equities, growing out of transactions between the original parties, has gone one step farther and adopted the rule of Burrough v. Moss and Whitehead v. Walker, that the endorsee of an over-due note takes it liable to equities arising out of the transaction itself, but not to set-off. Hughes v. Large, 2 Barr 103; Epler v. Funk, 8 Barr 468; Clay v. Cottrell, 6 Harris 413.

The mere fact of the bill being an accommodation bill does not prevent it being negotiable after it became due. This fact caused a decision in Quinn v. Fuller, 7 Cush. 224, different from what would now be made in England.

In England a plea has been adjudged bad in substance which shewed merely that the defendant accepted the bill for the drawer's accommodation, and without any consideration, and that after it became due, the drawer endorsed it to the plaintiffs, they knowing that it had been accepted for the drawer's accommodation, and that the defendant had not received any consideration for the same. The plea was considered bad in this that it contained no allegation of fraud nor any averment that the plaintiff did not give a full and valuable consideration for the bill. Charles &c. v. Marsden, 1 Taunt. 224; Sturtevant v. Ford, 4 Man. & Grang. 101, 43 Eng. Com. Law Rep. 61.

In another case the plea besides alleging that the defendant accepted the bill for the accommodation of the drawer and endorser, averred that he accepted it on condition that it might be endorsed and negotiated for their accommodation and use only before the same became due and not afterwards; and that without the defendant's consent the bill was endorsed to plaintiff after it became due, and the plaintiff did not become holder of it until after it so became due. The plea was adjudged bad. Carruthers v. West, 11 Adol. & El. N. S. 143; 63 Eng. Com. Law Rep. 143.

A plaintiff who takes a bill when it is over due, and without consideration, takes it subject to the equities and disabilities attaching on it in the hands of the person from whom he took it. If that person was an endorsee, the plaintiff must prove such an endorsement to that person as he if plaintiff must

have proved. Lloyd v. Howard, 15 Adol. & El. N. S. 998, 69 Eng. Com. Law Rep. 998.

20. Whether endorsement be before or after paper is due, an assignee of only part of what is due on it, can maintain no action on it.

Whether the endorsement be before or after the paper became due, if the assignment thereby, be of only part of what is due on the note, no action can be maintained thereon by the assignee against the maker. He is not to be made liable to two actions when by his contract he is liable to but one. Hawkins v. Cardy, 1 Ld. Raym. 360, Carth. 466, Salk. 65, 12 Mod. 213; Lex Merc. 445.

Where the payee first assigned over $1930 and 50 cents, part of a note, and afterwards assigned over the residue to the same person, it was held in South Carolina that no action could be maintained by that person against the endorser; the court considering that an endorsement for part of a note or bill is bad and that two vitious endorsements cannot make a good one. Hughes v. Kiddell, 2 Bay 324.

This was going farther than the supreme court of New York might be willing to go in a like case. But where the assignment was only of part of what was due on the note, so that on the principle of Hawkins v. Cardy, the assignee could not sue the maker, that court considered it a necessary consequence that he could not sue the endorser. Douglass &c. v. Wilkeson, 6 Wend. 641.

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1. Where by mutual agreement between debtor, creditor and a third person, the latter takes debtor's place.

There are cases in which by agreement, though it be parol, one person may be substituted for another, as it regards the obligation of the latter. Thus by parol agreement between landlord, tenant and a third person, the latter may be substi

tuted for the tenant, and such former tenant discharged. Stone v. Whiting, 2 Stark. 235; Thomas v. Cooke, Id. 408; Matthews &c. v. Sorwell, 8 Taunt. 470; Phipps v. Sculthorpe, 1 Barn. & Ald. 50; Nickells v. Atherstone, 10 Adol. & El. N. S. 944; 3 Eng. Com. Law Rep. 331, 405; 4 Id. 101; 59 Id. 944; Schieffelin v. Carpenter &c. 15 Wend. 400. And an analogous principle holds in respect to other contracts than those of a tenant.

Where it is admitted that a defined and ascertained sum is due from A to B, and that a larger sum is due from C to A, and the three agree that C shall be B's debtor instead of A, and C promises to pay B the amount owing to him by A, an action will lie by B against C. Wilson &c. v. Coupland &c. 5 Barn. & Ald. 225, 7 Eng. Com. Law Rep. 77. One case in Virginia has some of the features of this class. Peyton &c. v. Stratton &c. 7 Grat. 380. It is a general rule as to such cases that it lays upon the plaintiff to shew that at the time when the defendants are supposed to have promised to pay him the debt owing to him by the third party, there was a debt ascertained to be due to that party from the defendants. Fairlie v. Denton &c. 3 Barn. & Cress. 395; 15 Eng. Com. Law Rep. 246. And it must appear that the plaintiff agreed to look to the defendant instead of his original debtor; that the debt from such debtor to the plaintiff was extinguished. Cuxon &c. v. Chadley, 3 Barn. & Cress. 591, 10 Eng. Com. Law Rep. 191; Wharton v. Walker, 4 Barn. & Cress. 163, 10 Eng. Com. Law Rep. 302.

These cases then in effect hold that even at common law a chose in action is assignable with the assent of the three parties concerned.

2. When creditor assigns, and debtor promises to pay


The next enquiry is what is the obligation of a debtor who at the time his creditor assigns gives no express assent. In Massachusetts and Maryland an assignment by a party of his money in another's hands with notice to that other imposes on him an equitable and moral obligation to pay the money to the assignee; and though this obligation is not suf ficient at common law to enable the assignee to maintain an action thereon in his own name, it is yet a good consideration for an express promise to that effect. It is no objection to such an assignment that it is of a debt due on open account or even of an unliquidated balance of account. If the defendant having notice of the assignment promises to pay

what shall appear to be due from him, he is liable for what shall so appear. Nor does it make any difference if instead of a debt now due, the assignment is of money which is expected to become due at a future day to the assignor. When the contingency happens and the money is due, the debtor is liable for the amount on his promise to the assignee. Jackson, J. in Crocker & wife v. Whitney, 10 Mass. 326; Kingsley &c. v. New England Mut. F. I. Co. 8 Cush. 400; Omon v. Paul, 1 Har. & J. 114; Allston's adm'r v. Contie's ex'or, 4 Id. 351. There are other cases deciding that a promise in writing delivered over by the payee to another for an adequate consideration, the promiser having notice and promising to pay the assignee, will justify an action by the assignee upon such promise in his own name. Lamar v. Manro, 10 Gill & J. 50; Gordon v. Downey, 1 Gill 51. Such action has been maintained, although the name of the promisee was not signed upon any part of the note. Mowry v. Todd, 12 Mass. 281; Jones v. Witter, 13 Id. 307. It has been maintained without producing an assignment in writing. 1 Har. & J. 114, 15.

S. C.:

In Virginia an action of assumpsit has been maintained upon the promise of an obligor to pay the amount of his bond to a third person if such person would accept a transfer thereof. Cleaton v. Chambliss, 6 Rand. 86. In this case, the obligors in a bond proposed, for valuable consideration, to transfer the same to a third person, and, after this proposition, the latter had a conversation with one of the obligors, in which that obligor promised him that if he would take the bond from the obligee, he the obligor would pay him the sum of money specified in the same, when it should become due. The person to whom the promise was made, took a transfer of the bond without any written assignment, and afterwards brought suit in the name of the obligee, for his own benefit, on the bond. In that suit, non est factum was pleaded, and a verdict and judgment rendered for the defendant. An action of assumpsit was then brought upon the promise made before the transfer. The declaration set forth the foregoing facts. It averred that the bond had not been altered from the time of the promise until the rendition of the judgment, and concluded with charging the defendant's liability. Upon demurrer to the declaration it was held to be good.

3. Where a bond or note is sold and delivered, but no promise made to the purchaser, nor any written assignment made to him, what are his rights.

If two men agree for the sale of a debt and one of them

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