Сн. 24.

Art. 4.

cases.

21. Many other cases are cited to shew notes were negotiable before the statute, as Cromwell v. Floyd, Newman's case, 12 Mod. 241 decided, a bearer of a bill is not liable to be sued; 5 Mod. 367, Woolvil v. Young & al. turned on a Several defect in the declaration. Hawkins v. Cardy, 1 Salk. 65, was decided on the assignment of only a part of the debt due; and any thing said further was mere dictum and ex gratia. 12 Mod. 244, Lambert v. Oakes, 10 W. III, was only Holt's opinion, and only decided there must be a demand on the drawer before the endorser is liable: I say Holt's opinion, because it will be recollected that a few years after this he was so clear and decided in Clerk v. Martin, Buller v. Crips, &c. against the negotiability of notes before the statute. Therefore, we must be careful how we admit obiter dicta ascribed to Lord Holt inconsistent with his subsequent settled decisions. See Lambert v. Oakes, Ch. 20, a. 15, s. 5; 12 Mod. 380, Carter v. Palmer; 12 W. III. So in this case we have only Holt's opinion, and only decided a promise to one and bearer is not negotiable, and as to what might seem further could not have the weight of authority. A few other cases have been cited to prove this negotiability before the statute not very material.

22. On the whole, a great number of cases at different times have been cited, mostly noticed above, to prove that a money note payable to order, was in its nature and before the said 3 & 4 of Anne negotiable, so that the assignee of endorsee of it could sue and recover it in his own name, and to his own use, against the maker or any endorser by the plt's. endorsee. But on a close and critical examination of the cases it will be found their weight is far inferior to their number, so that they have generally been decided on the forms of pleadings, and upon collateral points in them; often without argument, and that many of them embrace only Lord Holt's opinions and dicta, clearly overruled if reported correctly in the solemn decisions, in which he afterwards confidently joined, subsequently made in Clerk v. Martin, Buller v. Crips, Potter v. Pearson &c. &c. On a full view of them this inquiry arises, namely: if they, as some urge, clearly proved this negotiability of notes in question, why was so little notice taken of these cases by court and counsel in Clerk v. Martin, and the latter cases well considered, and which settled the law at least for the time, against such negotiability, and which produced the said statute of Anne. Also it is to be observed, that parliament in passing this act expressly recited, that it had been decided that these notes were not so negotiable, and took no notice of different decisions, not so much as to say there were doubts on the subject.

CH. 24.
Art. 4.

ner.

23. The fair view of this subject seems to be in this manLong before the statute of Anne, there were much in use, and beneficially, among traders and brokers, the verbose notes called bills of debt, above described, at Amsterdam and many other places on the continent. As trade and money operations increased in England, these instruments, and short notes somewhat on the same principles, became useful there, and especially in Lombard street, and more especially among the goldsmiths of that street, the then brokers &c. Such instruments, not proper bills of exchange, being found to be very useful and convenient, the merchants, traders, and brokers, and some judges and lawyers favoured them and countenanced their negotiability; and endeavoured to draw them within the custom of merchants, and to rank them among real bills of exchange. Hence, sometimes they were sued as such, and by bearers and by endorsces; and these sometimes recovered judgments, without argument; sometimes on the deft's. default, or defects in his plea; sometimes because the plt. laid a special custom, and declared on a note brought within it, and the deft. admitted the custom by not traversing it, as in Hodges v. Steward, above. And several forms of declarations in such cases, got inserted in Rastell and other books of entries. Still, as Malynes ststed, these proceedings on these notes, as on real bills of exchange, and as so negotiable, were against the principles of the common law. At last the attention of Lord Holt, and of the other judges of the king's bench, was particularly drawn to these proceedings, and to this subject; and so much so, that Lord Holt was led to say the goldsmiths of Lombard street were attempting to make new law, and to oppose them totis viribus, and their new proceedings; while the judges of the common pleas, and the barons of the exchequer did not for a time, at least, lean against them, but who coneurred with the judges of the king's bench; when early in the reign of queen Anne, the subject was much discussed, and it became necessary to decide the cases strictly, according to law; and when too, the strong and clear distinctions came to be made between inland bills, and promissory notes, which were made in the said statutes of W. 3, and of Anne. Distinctions so strong and clear, that it is difficult to conceive how reporters ever confounded such bills and notes, after the said statute of W. 3 was passed.

On a careful review of this subject, we may conclude, though not without some doubts, that no chose in action, proper bills of exchange excepted, is assignable, negotiable, or endorsable, as aforesaid, in any state in the Union, but in virtue of some statute adopted or enacted.

CH. 24.

Art. 5.

$24. A bond is not assignable on the statute of Virginia, of 1748, &c. so as to enable the assignee to sue in his own name; as where the condition is collateral, and it is necessary to assign breaches, and to call in a jury to assess damages. 6 Cranch 82, But generally, a bond to be so assignable must be for the pay- Lewis v. ment of money and a sum certain. Craig v. Craig, 1 Call. 483; Henderson v. Hepbiern, 2 C'ali. 232.

Harwood.

Mandeville v.
Riddle.

§ 25. Notes &c. partially assignable in Virginia. By her Cranch 290, statute, no right is given to sue the assignor. Such an action can be supported only on the assignor's implied promise, raised by law. Hence, can be only between the assignee and his immediate assignor. As the assignment is made to a particular person, the law implies a promise to him, and to him only; but it raises po promise to any other; there is no fact on which to imply such promise; none between A and C, when A assigns to B, and B to C; there is a privity between A and B, but none between A and C. The implied promise Machie & al. growing out of the assignment or endorsement is not viewed . Davis, 2 as having been made, by said statute of Virginia, assignable; so the assignee of that promise cannot sue indebitatus assumpsit on it. But C may sue A in equity, as the endorsee of a 3 Cranch 311, promissory note payable to order, cannot in Virginia, at law, Stuart.-2 sue a remote endorser, but may sue him in a court of equity. Hen. & M. The assignor of a bond in Virginia, is liable to the assignee on general principles, if the obligor prove insolvent; and this is proved generally by the officer's return, no effects, on an execution against the obligor.

ART. 5. § 1. If A become indebted to B for goods sold, work done &c. &c., there are sundry cases in which A may discharge his debts, absolutely, or conditionally by making, assigning, or endorsing to B a chose in action, as Ch. 20, a. 19, ante, several cases. See also Ch. 20, a. 20, s. 6 to 10, several principles and cases of paying in notes or bills. See further Ch. 165, sundry cases when a bill pays a debt or not.

2. Several rules to be extracted from the cases in the books, and usually, a contract of a superior obligation discharges one inferior, as a bond or simple contract-2d. If the creditor accept in satisfaction of his debt, his debtor's contract or that of a third person, absolutely and fairly-3d. If he accept such conditionally, and parts with it so that the debtor cannot have it if he pay his first debt-4th. If the creditor for his goods sold, &c. accept of the buyer a note or contract of a third person, and is guilty of laches in getting it paid, or indulges him beyond his contract-5th. Or if the seller or creditor take his debtor's contract, or that of a third person, (not as absolute payment) and so manage it that he cannot, or

Wash. 219.

Goodall v.

105,

CH. 24.
Art. 5.

3 Cranch311, Harris, in er

ston.

do not restore his debtor to the full benefit of it he would have had if he had not parted with it, then it is payment for the goods, &c.

§ 3. When does a Virginia note pay a prior debt? The ror v. John- action was assumpsit for goods sold and delivered, and money had and received. Plea, never promised, by Harris. Johnston, the original plt., at the time of the sale, received of Harris the note of Clingman & M'Gaw, payable to the order of John Towey, or order, endorsed by him in blank to Harris, payable April 2, 1798, when paid to be in full for the goods, whence Johnston received this note conditionally, endorsed to him in blank by Harris, when he had the goods; and afterwards Johnston endorsed it to John Dunlap, who April 19, 1798, sued Harris in the court of Hustings in Alexandria, on his endorsement, striking out Johnston's name, and making Harris' endorsement, direct to Dunlap. Judgment for him, as by the law of Virginia the endorsee may recover against his immediate endorser, though not against a remote one at law. Harris appealed to the district court of Dumfries, which reversed the Hustings judgment; and Dunlap appealed to the court of appeal, which affirmed the judgment of the district court. The reversal was because in Virginia, Dunlap could not strike out Johnston's intermediate blank endorsement, and thereby make Harris, Dunlap's immediate endorser. Held, John

ston could not recover for the goods, as he had received the note as conditional payment and passed it away; for the endorsements of the note passed the property in it to Dunlap, and evidence it was sold for a valuable consideration; and then to recover for the goods would be receiving double satisfaction. Cited Ransdale v. Morgan as in point, Ch. 165, a. 3. In the case of Young v. Clarke the note had not been passed away; and Harris was liable in equity on his endorsement to a remote endorsee. And if Harris paid for the goods, he was entitled at any rate to the note, as beneficially to him as it was when Gordon & al. he parted with it.

v. Brown's executors.

4. Partners, to recover on a Virginia bond taken to one of them, his heirs &c., must aver it was taken to their use, or that he or his representatives assigned it to them. 2d. The assignee must state the assignment in his declaration. 3d. A bond, dated Jan. 4, 1775, will not support a declaration stating one as bearing date, Jan. 4, 1773.

CHAPTER XXV.

CH. 25.

ASSUMPSIT. CONSIGNMENTS.

Ch 132, a. 7.

§ 1. The general principle is that "the consignor of goods See Bill of Lading, Ch. may in case of the insolvency of the consignee, stop them in 21-3T R. transitu, any time before they get into his actual possession." 464, Ellis v. A "constructive delivery to the vendee, is not sufficient; but Hunt. See an actual delivery is necessary to divest the vendor's right to -1 Johns. R. stop the goods in transitu;" and this on equitable principles, 214.-1 Ld. first established in chancery, and since adopted by the courts Atk. 248. Raym. 27.-1 of law. This rule was first laid down by Lord Hardwicke, in Snee v. Prescott, 5 Burr. 2680.

§ 2. The cases seem to turn on what is an actual delivery to, or an actual possession in the consignee or vendee. This question often arises, not only under the head of consignments, but under many other heads; as of assignments, bills of lading, factor, lien, possession, &c. So when the possession of the common carrier is that of the vendor or vendee. See Carrier, Ch. 23, several cases.

Mason, in

error.

3. Consignment in commerce, is the delivery, or making 1 H. Bl. 357, over goods to another; and goods are said to be consigned to a factor, when they are sent to him to be sold, whether on the delivery to him they are so mixed with his goods as not to be distinguished from his, or kept separate and distinct from them.

Evans v. Mar

§ 4. One Harvey loaded goods on board a ship, and con- 3 Salk. 290, signed them to Evans; but by the invoice they appeared to till-12 Mod. be the property of Harvey. Evans sued Martill for the goods. 156.-1 Ld. The court held that the invoice signified but little in this case; 1D. & E.659. Raym. 271.but that it was the consignment of the goods, which vested -3 Esp. Cas. the property in Evans. But had they been consigned to him 12-8 D. & on account of Harvey, he would have only been factor to East 211. Harvey, and Harvey must have sued for them. When the 4 Burr. 2046. consignee may sell. See Lichborrow v. Mason, ante; and 5 Term R. 674, 633.

E. 380.-4

5. By this act, and the other custom house acts, the United States act, July 31, owner or consignee may enter the goods or cargo at the cus- 1789, sect. tom house. But this does not affect the right of property 13. that must be looked for and found, on general principles of law.

3 T. R. 119,

6. A consignor has no right to stop the goods in transitu, 123, Kenloch when the consignee has paid the value of them; but has if v. Craig.—7 only a part of them is paid for. See this case Ch. 30. If T. R. 440.