Cн. 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 Call. 232.

Harwood.

Mandeville v.
Riddle.

$25. Notes &c. partially assignable in Virginia. By her 1Cranch 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 no 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. 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 coutract, or that of a third person, (not as absolute payment) and so manage it that he cannot, or

Wash. 219.

Goodall v.

Hen. & M.

105.

CH. 24.
Art. 5.

3 Cranch 311, 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, Johnston 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.

Сн. 25.

ASSUMPSIT. CONSIGNMENTS.

Ch. 132, a. 7.

1. The general principle is that "the consignor of goods See Bill of 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.

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 Mason, in 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.

3 Salk. 290, Evans v. Mar

till.--12 Mod. 156.-1 Ld.

Raym. 271.

§ 4. One Harvey loaded goods on board a ship, and consigned them to Evans; but by the invoice they appeared to be the property of Harvey. Evans sued Martill for the goods. The court held that the invoice signified but little in this case; D. & E.659. but that it was the consignment of the goods, which vested -3 Esp. Cas. the property in Evans. 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.

CH. 25. goods be assigned to a factor, and before they come into his actual possession, he accepts bills drawn by the consignor, and pay part of the freight, and become insolvent; the consignor may stop them in transitu. And there is a great difference between payment and liability to pay. "In every instance where goods are sent by way of sale, the party to whom they are sent, is liable to pay; but till he has paid, in case of failure, the owner may stop them in transitu. Paying a part of the freight as factor, cannot be considered as taking possession of the cargo. When payment is made, the sale is complete, and the doctrine of a lien does not apply. A factor's lien ceases when he parts with the possession, and he cannot stop in transitu.

1 East 4, 5. Swett v. Pym. -3 D & E. 467, Hunt & al. v. Ward.

2 Rob. Ad. R. 111. The Paschel de Bilboa.

es.--8 Cranch

7. In this action, brought by Hunt & al. assignees of Bennett & al. against Ward, the goods had been sent by orders from the vendee to a middle man, between the vendor and vendee; and the court held that they might be stopped in transitu, on the bankruptcy of the vendee. P. 469, Buller J. said, "there may be cases where, as between the buyer and seller, if no bankruptcy or insolvency happen, the goods are considered in the possession of the buyer, the instant they go out of the possession of the vendor: as if A order goods from B, to be sent by a particular carrier, at his risk, the delivery to the carrier, is a delivery to the vendee, to every other purpose; but still if he become a bankrupt before the carrier actually deliver them to him, I should hold the vendor might seize them; because that is only a constructive delivery to the vendee: but an actual delivery is necessary to devest the vendor's right of stopping the goods in transitu," and this right" is founded only on equitable principles," "originally established in courts of equity, and since adopted in courts of law."

If

In time

$8. The effect of consignments in war and peace. freight is to be paid in an enemy's country, it very strongly argues that the property is in the consignee. In him, goods orMaterial cas- dered vest on delivery to the master in time of war. of 317, 335, 382. peace, it may by agreement be otherwise for then the interest may continue in the consignor till arrival. In war this is not allowable. And it is necessary the bills of lading declare on whose account and risk the goods are shipped. 1 Johns. R. 1.

Lex. Mer.
Am. 47.

8 D. & E. 330,

9. Where goods are consigned, the consignee by the laws of the United States, is deemed owner, for the purpose of paying the duties.

§ 10. Delivery of the goods to the carrier appointed by 334, Dawes the consignee, is a delivery to him. As where a trader in

Peck.-6

v.

East, 23.-Abbott 3d. ed. 351.

Warwickshire ordered goods from a dealer in London to be CH. 25. sent by a particular carrier. The goods (gin) were delivered accordingly, but were left on the road till the time expired for the transportation mentioned in the permit; they were seized accordingly. The dealer who consigned them, paid the booking, and brought his action on the case against the carrier, to recover the value. Judgment for the defts. on the ground the property had vested in the consignee, and therefore, to him only was the carrier liable.

§ 11. And Lord Kenyon C. J. said he could not admit (as was urged) the "right of property, on which this action is founded, is to fluctuate according to the choice of the consignor or consignee," so that either may sue the carrier. He is the person to sue, who has sustained the loss by the carrier's negligence, and he is the owner of the goods. After the above delivery, the vendee will run the risk: the damnum et injuria was to him, and not to the consignor. Davis v. James. The consignor was allowed to sue the carrier, because he was to answer to him the price of the carriage: "he stood therefore, in the character of insurer to the consignee, for the safe arrival of the goods." And in Moore v. Wilson, the court Moore v. Wil went on the same ground. The action rested on the agree- 2680. ment between the carrier and the plts. who were to pay him. 1 Johns. R. 214, 228; Hardress, 321; 1 Atk. 245; 1 Stra. 129.

son, 5 Burr.

12. Though it be a general rule, that if goods be deliv- Vale v. Boyle', ered to the consignee's carrier, it is a delivery to him, yet the Cowp. 294. consignor may take on himself actually to deliver them to the vendee, and to run the risk of the conveyance; but to ascertain which, consignor or consignee, is to bear a loss, the usage and course of trade is always to be considered; and see Goodall v. Shelton, Ch. 11, a. 4.

7 Mass. R.

453, 458,

13. Replevin for salt and coals: deft. claimed them as the property of L. & W. Weeks, and prayed a return, dama- Stubbs v. ges and costs; and traversed the plt's. property and issue. Lund, a depLogan & Co. at Liverpool, in England, (plt. one of them) uty sheriff." shipped the goods on the credit and account and risk of said L. & W. Weeks, and consigned the same to them or their assigns. Before the ship sailed from Liverpool, the shippers informed of the insolvency of the consignees, refused to let the ship sail, under the said shipment of the cargo; but consigned it to the plt. and took new bills of lading accordingly. Logan & Co. had previously agreed to accept the drafts of L. & W. Weeks, or to advance them cargoes on credit to a limited amount; and they charged them the salt and coals in question. Lund attached them as the property of L. & W. Weeks; who became insolvent after the shipment. Held, VOL. I.

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