English bankrupt law, effectual to vest in the assignees the beneficial interest and property, "would not be allowed, with us, the operation which such an assignment has in England, of giving to the assignees a remedy in their own names upon the debt assigned." The same principle is stated by Ch. J. Kent, in Bird v. Carital,' and seems to be the settled law of New York. Raymond v. Johnson.' The converse of the proposition, but supported by the same reason, that the lex fori governs the remedy, is found in decisions where it has been held that a promissory note payable to order, though made in a country where such a note is not negotiable, if sued where such notes are negotiable, may be sued by the indorsee in his own naine. Milne v. Graham, Lodge v. Phelps. No case has been cited to support the position that a suit cannot be brought in this Commonwealth in the name of the payee of a promissory note not indorsed, even if it could also be brought in the name of his assignee. The suggestion of the defendant's counsel, that the affidavit of the party interrogating is conclusive as to the materiality of the information sought, we cannot adopt. Such an affidavit is required by the statute, as a security against frivolous or vexatious examinations of a party by his opponent; but the right to interrogate is expressly limited by the statute to "the discovery of facts and documents material to the support or defence of the suit." Stat. 1852, c. 312, § 61. Exceptions overruled. 12 Johns. 345. 2 11 Johns. 488. In Holmes v. Remsen, 4 Johns. Ch. 460, 485, Chancellor Kent recognized the right of foreign assignees to sue in New York in their own names; and his later opinion, rather than his first, seems to be the settled law of New York. Abraham v. Plestoro, 3 Wend. 588, 550, 560, 561, 567; Hoyt v. Thompson, 1 Seld. 820; Peterson v. Chemical Bank, 29 How. Pr. 240; Hunt v. Jackson, 5 Blatchf. 349 -ED. Blane v. Drummond, 1 Brock. 62; Brush v. Curtis, 4 Conn. 812; Roosa v. Crist, 17 Ill. 450; Richards v. New York R. R., 98 Mass. 92 (semble); Kirkland v. Low, 33 Miss. 423, accord. To the same effect are McRae v. Mattoon, 10 Pick. 52 (semble); Byrne v. Walker, 7 S. & R. 483; Merrick's Estate, 5 W. & S. 9, 19 (semble); Fisk v. Brackett, 32 Vt. 798. But see Elderkin v. Elderkin, 1 Root, 189; Bowne v. Olcott, 2 Root, 353; Goff v. Billinghurst, 2 Root, 527; Stuart v. Greenleaf, 3 Day, 311; Upton v. Hubbard, 28 Conn. 274, 284 (semble); Mason v. Homer, 105 Mass. 116; Milne v. Moreton, 6 Binn. 858, 874 (semble), and cases cited supra, 384, note 8, contra. — ED. 25 indorse the bices SECTION III. Temotes of their By whom the Transfer should be made. testator and the dence call sve m STONE v. RAWLINSON. IN THE COMMON PLEAS, EASTER TERM, 1745. [Reported in Willes, 559.] THIS was an action on a promissory note for fifty guineas, made by the defendants, dated the 11th of May, 1730, and payable to James Watson, or order; and the declaration stated that Watson died on the 1st of April, 1734, intestate, upon whose death administration of his goods and chattels was granted to Ann Webb, who indorsed the note to the plaintiff. To this declaration the defendants demurred, and showed for cause that the plaintiff did not bring into the court or show to the court any letters of administration of J. Watson's goods granted to Ann, and that he did not show who granted administration of Watson's effects to the said Ann. This case was twice argued, the first time in Michaelmas term, 1744, by Agar, Serjt., for the defendant, and Draper, Serjt., for the plaintiff; the second, in Hilary term following, by Birch, King's Serjt., for the former, and by Prime, King's Serjt., contra. And though Mr. J. Burnett appears at first to have been inclined to give judgment for the defendant, he afterwards agreed with the rest of the court, whose opinion was now delivered as follows, by WILLES, L. Ch. J. This comes before the court on a demurrer to the plaintiff's replication. There are two causes of demurrer assigned in the pleadings. First, that there is no profert made of the letters of administration. Secondly, that it is not said by whom the letters of administration were granted; so that it does not appear whether they were granted by proper authority. And a third was made at the bar, that an executor or administrator cannot assign a promissory note made payable to a person or order, so as to enable the indorsee to bring an action on such note in his own name by the Statute 3 & 4 Anne, c. 9. As to the two first objections, which are the only causes assigned in the demurrer, we have given our opinions before. For, as the letters of administration cannot be supposed to be in the custody or power of the indorser, he ought not to be obliged to produce them; and, for the same reason, he need not show by whom they were granted. But, if the defendant stand trial, the plaintiff must not only produce the letters of administration in evidence, because it is the title under which he claims, but must likewise show whether they were granted by a court or a person having legal authority so to do; otherwise, he cannot recover. The third point, therefore, and the only one which remains to be considered, is whether the executor or administrator of a person to whom or to whose order a promissory note is made payable, can assign over such note so as to enable the indorsee to bring an action upon it in his own name. And as it was insisted, on the one hand, that though this has been frequently done by persons concerned in trade, yet it had never been controverted before; so it was admitted on both sides that there has never been any judicial determination upon this point either one way or the other. And though several cases were cited as bearing some resemblance to this, I think that none of them were at all material in this case, except the case of Moore and Manning, in Comyns, 311, 312, of which I shall take notice presently. ་ As this is a matter which greatly concerns the trade and commerce of the nation, and as it has never been judicially determined before, we thought ourselves at liberty, and that it was the most proper method we could take to inquire of traders and merchants of undoubted credit what has been the practice in this case ever since the act of the third and fourth of Queen Anne, and how the act has been understood by them. We have done so; and they all agree that it has been the constant practice for executors and administrators to indorse such notes and inland bills of exchange, and that promissory notes, when so assigned, have always been considered to be as much within the statute, and that they may be put in suit by the indorsees in the same manner as if they had been indorsed by the testator or intestate. As, therefore, we are fully satisfied that this has been the constant practice, and that the law has been always so understood amongst traders, and as the courts of law have always in mercantile affairs endeavored to adapt the rules of law to the course and method of trade in order to promote trade and commerce, instead of doing it any hurt, so we are determined in the present case to make this indorsement valid according to the practice, if we can by any means. make it consistent with the words of the act and agreeable to the rules of law. And we think it is easy to do both. The words of the act, when considered, will, I think, plainly warrant it, I mean the following words, in the first section of the act: "That any person to whom a promissory note that is payable to any person or his order is indorsed or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, shall and may maintain an action for such sum of money either against the person signing such a note, or against any of the persons who indorsed the same, in like manner as in cases of inland bills of exchange." What was the practice before and since as to inland bills of exchange, we can only learn from the report of merchants; and they unanimously agree that they were always looked upon to be so assignable by executors and administrators as to enable the assignee to bring an action in his own name. And I think this construction agreeable to the plain intent of the act, which is that, whereas the assignee of such notes before had certainly an equitable interest, which would enable him to bring an action in the name of the assignor, such equitable interest by the statute was converted into a legal interest, so as to enable the assignee to bring an action in his own name. It must be admitted that the whole interest to the testator or intestate in such notes vests in the executor or administrator; and that before the stat ute the executor or administrator might have assigned all his right in such notes, so as to convey an equitable interest to another, and to enable him to sue in the name of the executor or administrator. If therefore, by the statute, such equitable interest is converted into a legal one, it follows that since the statute such assignee may sue in his own name. And I think that the case of More and Manning 1 in this court, and reported in Comyns, 311, 312, which was the only case that was cited which seems to bear any resemblance to this, plainly warrants this construction. A promissory note, drawn by Manning, was made payable to Statham, or his order. Statham assigned it to A, and A to the plaintiff : on a demurrer to the declaration, the exception was that the assignment was only to A, not saying to him or order, and therefore he could not assign it to the plaintiff. And to this the Chief Justice at first inclined; but afterwards it was resolved by the whole court that it was good. For if the original note were assignable, it will always remain so; and whoever has the whole interest in the note may assign it as he pleases. 1 On the strength of this case, I think I may make a syllogism, which will be conclusive in the present case. Whoever has the absolute property in a bill made payable to one, or his order, may assign it as he pleases within the provision of the statute; and such assignce may maintain an action in his own rame. The executor or administrator of a person to whom such bill is made payable has the absolute prop erty in it; and therefore he may assign it to whomsoever he pleases 1 5 G. 1. and such assignee may maintain an action in his own name, which [ is the only question that remains to be determined in the present case. And, we being all of that opinion, judgment must be for the plaintiff.1 A bickade batable in CARVICK v. VICKERY. Santuens, must be IN THE KING'S BENCH, HILARY TERM, 1783. indorsed by bo [Reported in 2 Douglas, 653, note.] THIS was an action by the indorsee of a bill of exchange, which was in the following form: "MR. ABRAHAM VICKERY. "Two months after date, please to pay to us, or our order, the sum of, &c. It was indorsed thus: "JOHN MAYDWELL. "JOHN MAYDWELL." "JN. MAYDWELL. "HOLLOWAY." The indorsement was by the The Maydwells were father and son. son. They were admitted not to be partners. presented to the defendant, and accepted; and, at the time of the acceptance, he wrote upon it a direction to his banker to pay it. The cause was tried, at the sittings after M. 23 Geo. III., at Guildhall, before Lord Mansfield, who nonsuited the plaintiff, because there was not an indorsement by both the parties to whose order the bill was made 1 Affirmed in Rawlinson v. Stone, 3 Wils. 1. Dwight v. Newell, 15 Ill. 333; Sanders v. Blain, 6 J. J. Marsh. 446 (semble); Malbon v. Southard, 36 Me. 147; Prosser v. Leatherman, 5 Miss. 237, 241 (semble); Miller v. Helm, 10 Miss. 687, 696 (semble); Wheeler v. Wheeler, 9 Cow. 34; Johnson v. Mangum, 65 N. Ca. 146; Mosely v. Graydon, 4 Strob. 7; Griswold v. Barnum, 5 Vt. 269; Cahoon v. Moore, 11 Vt. 604, accord. Stagg v. Linnenfelser, 59 Mo. 336, contra. See Edwards v. Campbell, 23 Barb. 423; Lounsbury v. Depew, 28 Barb. 44; Richardson v. Gower, 10 Rich. 109. Similarly, although an administrator can bring an action only in the jurisdiction where he has received letters of administration, one to whom he has transferred a bill or note may sue upon the instrument in other jurisdictions. Harper v. Butler, 2 Pet. 239 (semble); Barrett v. Barrett, 8 Greenl. 353; Rand v. Hubbard, 4 Met. 252, 258 (semble); Andrews v. Carr, 26 Miss. 577; Owen v. Moody, 29 Miss. 79; Leake v. Gilchrist, 2 Dev. 73; Grace v. Hannah, 6 Jones (N. Ca.), 94. But see contra, Stearns v. Burnham, 5 Greenl. 261 (overruled); Thompson v. Wil son, 2 N. H. 291; Lee v. Havens, Brayton, 93. The title to a bill indorsed to A, in ignorance of A's death, vests in his represen tative. Murray v. E. I. Cɔ., 5 B. & Al. 204. — ED. Bite 3172 1 |