Page images
PDF
EPUB

gives the other credit in his books for the price, that may be a good assignment in equity. Heath &c. v. Hall &c. 4 Taunt. 327; Kimball v. Huntington, 10 Wend. 680. These cases shew that courts of law take notice of such assignments. They protect the assignee in various ways. Welch v. Mandeville, 1 Wheat. 233.

By the sale and delivery of a bond or note, though without endorsement or written assignment, the purchaser becomes the beneficial owner. Although not recognized in a court of law as the owner, yet he is recognized as the agent, (and if he have a power of attorney) as the attorney in fact of the assignees; and may for his own use carry on a suit in their name for the debt or for a cause of action arising collaterally in the original suit. Waterman v. Williamson, 13 Iredell

199.

When the transferree as agent of the obligee to receive the money has received it, how then stands the right to the money? The moment it is received it vests in the transferree as legal owner. For the chose in action of which the obligee was the legal owner is extinguished by an act which he has authorized to be done, to wit: the reception of the money: the money vests in the transferree as legal owner by force of the contract of sale, which on the receipt of the money becomes executed in the same manner as if the obligee had himself received the money and handed it to the transferree in execution of the contract. If the transferree instead of going himself to the obligor send a third person for the money, the instant he receives it it becomes the money of the transferree, and if such third person pay it to the obligee the payment is in his own wrong, and the money may be recovered by the transferree in an action for money received. Hokes's ex'or v. Carter's adm'r, 12 Iredell 324.

5. How assignment may be made by writing.

In a case in Massachusetts, it was doubted by one of the court whether, without deed, a promise in writing, though not under seal, could be assigned, so as to convey an equitable interest to the assignee. But the rest of the court were of opinion, and many subsequent decisions held, that it might; and such may be considered as established doctrine. Wood v. Partridge, 11 Mass. 491.

As late as 1814, it was laid down in that state that an assignment of an interest under seal must be by deed; in other words, that the instrument of transfer must be of as high a nature as the instrument transferred. No case had then occurred VOL. II.-17

there of an attempt to assign a bond or covenant or other contract under seal by a mere delivery over to the intended assignee, with the name of the assignor in blank or with such words of transfer as are usually employed in the assignment of a parol or written promise. Wood v. Partridge.

The rule as to this matter in other states is different from that of Massachusetts. Hale v. Schultz, 3 McCord 218. In the southern states-to wit: in Virginia, North Carolina, South Carolina and others-it has long been the practice to transfer bonds for payment of money. 1 Hill 377. And in these transfers a common mode of passing them has been by a blank endorsement. 1 Bay 392.

6. At common law assignee had no right to sue in his own

name.

At common law the right of an assignee to sue in his own name on an executory contract was (in the absence of any express assent of the debtor) restricted to the cases mentioned ante, p. 77, 8, in chapter 7, treating of covenants running with the land; and to the cases of bills of exchange, mentioned ante, p. 222, in chapter 25. Changes have been made by statutes; in respect to instruments declared negotiable in the cases mentioned in chapter 20, ante, p. 164-173; and in respect to instruments not negotiable in the cases mentioned in the present chapter. In cases not embraced by such statutes, it must still be borne in mind that an assignee cannot sue in assumpsit on a contract made by the defendant with the assignor. Standen v. Chrismas, 10 Adol. & El. N. S. 141, 59 Eng. Com. Law Rep. 151.

7. Change made in Pennsylvania by the act of 1715.

The Pennsylvania act of May 28, 1715, recited in the preamble "that it hath been held that bonds and specialties under hand and seal, and notes in writing signed by the party who makes the same, whereby such party is obliged or promises to pay unto any other person or his order or assigns, any sum of money therein mentioned, are not by law assignable or endorsable over to any person so as that the person to whom the said bonds, specialties, note or notes, is or are assigned or endorsed may, in their own names, by action at law or otherwise, recover the same." The act then provided for such assignment and endorsement toties quoties. And it declared that the person or persons to whom the assignment or endorsement is made may, in his, her or their name or names, sue at

law "for the recovery of the money mentioned in the bond, specialty or note, or so much thereof as shall appear to be due, at the time of the assignment, in like manner as the person or persons to whom the same was or were made payable, might or could have done;" and that "the assignors shall not, after the assignment, have power to release any of the debts or sums of money really due by the said bonds, specialties or notes." 1 Dall. 443.

The variance between this act and the statute of Ann, has been regarded as intentional, not accidental. The words, so much as shall appear to be due, are deemed to relate to the time of trial. The construction of the act is that the assignee takes at his own peril; that he stands in the same place as the obligee, so as to let in every defalcation which the obligor had against the obligee at the time of the assignment or notice of the assignment; that the only intent of the act is to enable the assignee to sue in his own name and prevent the obligee from releasing after assignment. It was so decided in 1776. Wheeler &c. v. Hughes &c. 1 Dall. 23. And it was considered afterwards that bonds and promissory notes were, by the act, placed exactly on the same footing, except that bonds were to be assigned under hand and seal and in the presence of two or more credible witnesses. McCullough v. Houston, Id. 443.

If the bond was without good consideration, the assignee held it subject to the same equity as the assignor, notwithstanding the obligor had, after the assignment, promised the assignee to pay it. Ludwig v. Croll, 2 Yeates 464. It is different where the obligor's promise was made before the assignment, and in confidence thereof the assignee took the same. Carnes v. Field &c. Id. 541; Weaver v. McCorkle, 14 S. & R. 304. It may then be insisted that the obligor has, by his conduct, precluded himself from a defence which he might otherwise have set up. McMullen v. Wenner &c. 16 Id. 21. That is, it may be so insisted by a plaintiff who is not a bare donee but an assignee for value. Edgar v. Kline, 6 Barr 331.

Where, cotemporaneously with the execution of the bond and the assignment thereof, the obligor expressly agreed that the bond should be paid at all events when due, and that he would not buy up any set-off against it, a set-off brought forward in violation of this agreement will not be allowed. Henness v. Page, 3 Whart. 275.

On the authority of this case, it was contended that where the bond contained a promise to pay a certain sum, at a specified day, "without defalcation," the obligor should not be

permitted to defalcate from its amount notes of the obligee acquired by the obligor in good faith and without notice of the assignment. Bearing in mind the cause of introducing those words into common use-stated ante, p. 171-the court declined to let them have the effect contended for. Louden v. Tiffany, 5 W. & S. 367. It decided the case upon the general principle that when the instrument is not negotiable the assignee takes it subject to all the equity existing at the time of the assignment and notice; a principle equally well established in New York. Chamberlain v. Gorham, 20

Johns. 144.

8. State of things in Virginia before the statutes respecting assignments. Effect of those statutes as it regards the assignee's right to sue.

The state of things in Virginia, prior to the act respecting assignments, is mentioned by Judge Lyons in Barksdale v. Fenwick. He states that "before that statute, when bonds. were transferred, it was necessary that a power of attorney should accompany the assignment to enable the assignee to sue in the name of the assignor; to whom he was in fact but attorney, and was not bound to more than ordinary diligence. This practice, however, was found inconvenient, as the drawing of the power of attorney was troublesome, and the necessity of suing in the name of the obligee not only subjected him to costs but gave him a control over the suit and its proceeds, which was often injurious to the assignee; and, therefore, the statute was made merely to enable the latter to sue in his own name." 4 Call 510.

The first Virginia statute on the subject was passed at the session begun in October 1705, (the 4th of Ann). This statute provided as follows:

That it shall and may be lawful to and for any person or persons to assign or transfer any bond or bill for debt over to any other person or persons whatsoever, and that the assignee or assignees, his and their executors and administrators by virtue of such assignment shall and may have lawful power to commence and prosecute any suit at law in his or their own name or names, for the recovery of any debt due by such bond or bill as the first obligor, his executors and administrators, might or could lawfully do. Provided always, That in any suit commenced upon such bond or bill so assigned, the plaintiff shall be obliged to allow all discounts as aforesaid that the defendant can prove either against himself or against the first obligee. 3 Hen. Stat. 378.

In May 1730, (3 & 4 Geo. 2,) a further change was made,

"to the end the recovery of money upon promissory notes and other writings without seal may be rendered more easy." 4 Hen. Stat. p. 275, 8, 11, 12. This act of 1730 was substantially preserved at the revisal of 1748. The latter act (in 6 Hen. Stat. p. 86, 7) is as follows:

$5. That if any person or persons have signed, or shall sign, any note or other writing, whereby he, she, or they promise, or oblige, him, her, or themselves, to pay any sum of money, or quantity of tobacco, to any other person or persons, such person or persons, to whom the same is or shall be payable, may commence and maintain an action of debt, and recover judgment for what shall appear due thereupon, with

costs.

§7. That it shall and may be lawful to and for any person, or persons, to assign and transfer any bond, or bill, for debt, or any such note as aforesaid, to any other person or persons whatsoever: And that the assignee or assignees, his and their executors and administrators, by virtue of such assignment, shall, and may have lawful power to commence and prosecute any suit at law, in his, her, or their own name, or names, for the recovery of any debt due by such bond, bill, or note, as the first obligee, his executors and administrators, might or could lawfully do: Provided always, That in any suit upon such bond, bill, or note, so assigned, the plaintiff shall allow all discounts that the defendant can prove, either against the plaintiff himself, or against the first obligee, before notice of such assignment was given to the defend

ant.

The same thing is more briefly expressed in subsequent In the act of 1786 (12 Hen. Stat. 359) it is expressed

acts.

thus:

An action of debt may be maintained upon a note or writing, by which the person signing the same, shall promise or oblige himself to pay a sum of money or quantity of tobacco to another.

Assignments of bonds, bills, and promissory notes, and other writings obligatory, for payment of money or tobacco, shall be valid; and an assignee of any such may thereupon maintain an action of debt, in his own name, but shall allow all just discounts, not only against himself, but against the assignor, before notice of the assignment was given to the defendant.

Still an assignee of a bond with collateral condition could not sue thereon in his own name. Craig v. Craig, 1 Call 483; Henderson &c. v. Hepburn &c. 2 Id. 232; Lewis v. Harwood, 6 Cranch 82; Meredith's adm'x v. Duval, 1 Munf. 83. To remedy this, an act was passed. Sess. Acts 1795-6, p. 18, ch. 14, 2. Thus the provisions came to be as they are in 1 R. C. 1819, p. 484, ch. 125, § 4, 5, and in the Code of 1849, p. 582, § 10, 14. The following are the sections as now contained in the Code:

[ocr errors]
« PreviousContinue »