Cummings, assignee, v. Lynn

Cummings, assignee, v. Lynn. Assignment of bond. Under tho act of 1718, the assignee of one holding the equitable interest in a bond, cannot sue in his own name. The assignor of a bond is not liable to the assignee, on the failure of the obligor to pay, where there is no special covenant for that purpose. This was an action of covenant, and the circumstances under which it came before the court, were these : The plaintiff filed a declaration to the following words: “ Joseph Lynn, late of the county of Philadelphia, yeoman, was summoned to answer James Cummings, assignee of James Campbell and Stephen Kingston, who were assignees of George Turner, of a plea that he hold with him the covenants and agreements of him the said Joseph, with the said George made, according to the force, form and effect of a certain deed thereof by him the said Joseph, with the said George made, &c. And thereupon, the said James Cummings saith, that on the 6 th day of February, in the year of our Lord, one thousand seven hundred and eighty-four, xt the county aforesaid, a certa.n Nicholas Eveleigh, of the state of South Carolina, by his certain obligation or writing obligatory, sealed with his seal, and to the court here shown, whose date is the day and year aforesaid, acknowledged himself to be held and firmly bound unto a certain Lewis Lester jette, in the sum of three hundred and sixty-four pounds, twelve shillings, sterling money, in gold or silver specie, at the rate of four shillings and eight pence to the dollar, or one pound, one shilling and nine pence to the guinea, to be paid to the said Lewis, his certain ^attorney, executors, administrators and assigns, r*.. when he should afterwards be thereto required. And the said James ^ Cummings in fact saith, that the same sum of money, or any part thereof, being in no wise .paid or satisfied, a certain Joseph Parker, for whose use and benefit the obligation or writing obligatory aforesaid was made as aforesaid, afterwards, to wit, on the twelfth day of May, in the year of our Lord, 1784, at the county aforesaid, by his certain deed of assignment, on the obligation or writing obligatory aforesaid, under his hand and seal, duly made and executed, before two credible witnesses, did assign, indorse and make over the obligation or writing obligatory aforesaid, to the said Joseph Lynn, as by the same deed of assignment, to the court here shown, appears. And the said James Cummings further in fact saith, that the said Joseph Lynn, after-wards, to wit, on the- 8th day of September, in the year last aforesaid, at the county aforesaid, the said sum of money, or any part thereof, being in no wise paid or satisfied, by his certain deed of assignment, on the said writing obligatory, under his hand and seal, duly made and executed, before two credible witnesses, did assign, indorse- and make over the said obligation or writing obligatory, to the said George Turner, for value received of him. And the said James Cummings further in fact saith, that the said Joseph Lynn, in and by his said deed of assignment, did covenant and agree to and with the said George Turner and his assigns, that the sum of money aforesaid should be well and truly paid to the said George Turner, or his assigns, agreeable to the said obligation or writing obligatory, as by the same deed of assignment, to the court here shown, appears. And the said James Cum-, mings further in fact saith, that the said George Turner, afterwards, to wit, on the 18th day of November, in the year last aforesaid, at the county aforesaid, the said sum of money being in no wise paid or satisfied, did, by his certain deed of assignment, on the said obligation or writing obligatory, duly made and executed, under his hand and seal, before two credible witnesses, assign, indorse and make over the said obligation or writing obligatory to the said James Campbell and Stephen Kingston, and their assigns, for value received of them, and by the same deed of assignment, the said George did then and there covenant with the said James Campbell and Stephen Kingston, and their assigns, that the said sum of money should be well and truly paid to the said James Campbell and Stephen Kingston, or their assigns, agreeable to the said obligation or writing obligatory, as by the same deed of assignment, to the court here shown, appears. And the said James Cummings further in fact saith, that the said James Campbell and Stephen Kingston, afterwards, to wit, on the eighteenth day of December, in the year last aforesaid, at the county aforesaid, the said sum of money being in no wise paid or satisfied, by their certain deed of assignment, on the said obligation or writing obligatory, duly made and executed, under their hands and seals, before two credible *witnesses, did assign, indorse and make over the obligation or writing obligatory to the said James Cummings, and by the same deed of assignment, the said James Campbell and Stephen Kingston did then and there covenant with the said James Cummings, that the said sum of money should be well and truly paid to the said James Cummings, agreeable to the said obligation or writing obligatory, as by the same deed of assignment, to the court here shown, appears. Yet the said Nicholas Eveleigh, or the said Joseph Parker, or the said Joseph Lynn, or the said George Turner, or the said James Campbell, or Stephen Kingston, the sum of money aforesaid, or any part thereof, to the said James Cummings, although often required, hath not paid ; by reason whereof, action hath accrued to the said James Cummings, to demand and have the said sum of money of and from the said Joseph Lynn : nevertheless, the said Joseph Lynn, the same sum of money, or any part thereof, to the said James Cummings, hath not paid, although, to do this, the said Joseph Lynn, afterwards, to wit, on the 19th day of the same month of December, in the year last aforesaid, at the county aforesaid, was, by the said James Cummings required, but the same to him to pay hath hitherto refused, and still doth refuse ; to the damage of the said James Cummings, one thousand pounds, lawful money of the state of Pennsylvania ; and thereof he bringeth suit, &c.” The defendant craved oyer of the bond, condition and assignments stated in the declaration, which was given in the following words : “ South Carolina. “ Know all men, by these presents, that I, Nicholas Eveleigh, of the said state, planter, am held and firmly bound unto Lewis Lestarjette, merchant, in the full and just sum of three hundred and sixty-four pounds, twelve shillings, sterling money, in gold or silver specie, at the rate of four shillings and eight pence to the dollar, or one pound, one shilling and nine pence to the guinea, to be paid unto the said Lewis Lestarjette, his certain attorney, executors, administrators or assigns : to which payment well and truly to be made and done, I bind myself, and each and every of my heirs, executors and administrators, firmly by these presents : sealed with my hand, and dated the sixth day of February, in the year of our Lord, one thousand seven hundred and eighty-four.” “ The condition of the above obligation is such, that if the above-bound Nicholas Eveleigh, his heirs, executors or administrators, shall and do well and truly pay, or cause to be paid, unto the above named Lewis Lestarjette, his certain attorney, executors, administrators or assigns, the full and just sum of one hundred and eighty-two pounds, six shillings, sterling money, in gold and silver specie, at the rate of four shillings and eight pence to the ^dollar, or one pound, one shilling and nine pence to the guinea, J with interest from the date hereof, on or before the first day of January, which will be in the year of our Lord, one thousand seven hundred and eighty-five, without fraud or further delay, then the above obligation to be void and of non-effect, or else to remain in full force and virtue. Sealed and delivered in the presence of N Eveleigh.” (L. S.) John McQueen. “ N. B. — This bond is a renewal of an old debt contracted by Col. N Eve--leigh, to Mr. Jos. Parker, for the above amount, in the year 1780. L. Lestarjette.” “ I do hereby assign all my right, title, claim, property and demand of the within bond to Joseph Lynn, of the city of Philadelphia, merchant, for his sole use and benefit, for value received, 12th May 1784. Witness. Jos. Parker.” (L. S.) Cropely Rose, Alexander Major. “ I do hereby assign, at the request, and with the consent of the above-signed Joseph Parker, all my right, title, claim, property and demand, of, in and to the within bond, to George Turner, of Philadelphia, for his sole use and benefit. Value received of him, this twenty-eighth day of September 1784. Witness. Joseph Lynn.” (L. S.) Jacob Baker, Cad. Morris. “ I do hereby assign all my right, title, claim, property and demand of, in and to the within bond, to Messrs. James Campbell and Stephen Kingston, of Philadelphia, merchants, for their joint use and benefit. Value of them received, this eighteenth day of November 1784. Witness. G-. Turner.” (L. S.) Alexander Major, Henry M. Van Slingen. ‘ We do hereby assign all our right, title, claim, interest, property and demand, of, in and to the within bond, to James Cummings, of Charleston, merchant, for his use and benefit. Value received in account with him, Philadelphia, 18th December 1784. Witness. James Campbell. (L. S.) James Rankin, Stephen Kingston.” (L. S.) Alexander Major. *IJpon this, the defendant demurred, for the variance between the covenants stated and assigned in the declaration, and the covenants 1 appearing upon oyer of the bond, condition and assignments : and upon a joinder in demurrer, the question was brought before the court, whether this action of covenant could be maintained on Lynn’s assignment ? which was argued at the last term, by Tilghman and Sergeant, for the defendant, and Lewis and Ingersoll, for the plaintiff. For the defendant it was contended, in support of the demurrer, that the assignment by Parker was not within the act of assembly (1 Sm. Laws 90), for Lestarjette was the legal obligee, and Parker only the obligee in interest; and as no suit could have been maintained in Parker’s name, arguments drawn from the act cannot apply to support the present action, but the assignment must be considered as made at common law. That although Turner might have sued Lynn, yet, as it was only an equitable assignment, which is the ease in respect to all choses in action, where positive law does not interpose, Turner’s assignee could not support such «.ii action. 2 Ves. 181; 1 P. Wms. 252; 2 W. Black. 1140; Cro. Jac. 179. The assignment is only an authority to receive the money ; or, at most, a covenant, that, if Lynn received it, ho would pay. it to his assignee. There is nothing like an express covenant on the part of Lynn ; though, relying on the word assigned, it will, perhaps, be contended, that there is an implied covenant. But that (as it is already observed) is only an authority to receive the money; and the assignor can be guilty of no breach, unless he interferes with the recovery of his assignee. 1 Ld. Raym. 683; 3 Keb. 304; 2 Ld. Raym. 1242; 12 Mod. 553; 1 Id. 113. The law, indeed, will make a covenant, where a man contravenes his agreement, by deed under hand and seal. See 11 Mod. 171; Cro. Eliz. 157. But no action of covenant has ever been brought, in England, by the assignee of a bond, against the assignor ; which furnishes a strong argument that no such action will lie. 1 Ld. Raym. 683; 12 Mod. 553. And there has been no judgment of any court in Pennsylvania upon this point. The law is clear with respect to chattels in possession, that then an express warranty is necessary. 2 Salk. 210; 1 Str. 459. See Bull. N. P. 272. Promissory notes are assignable to this effect, by positive statute ; for, at common law, the indorsee could not sue the indorser, in his own name. (See 1 Sm. Laws, 90.) That, at least, due diligence ought to have been used to obtain the money from the obligor, as in the case of bills of exchange or promissory notes, where a demand should not only be proved, but alleged, or it would be fatal on a writ of error. See Doug. 679. In the present case, no action was ever brought, nor any other attempt alleged to have been made, for the recovery of the money, from the person who was originally bound to pay it. *For the plaintiff, in answer to these objections, it was insisted, that the assignment was under the act of assembly ; and the following books were cited: 1 Bac. Abr. 527-30; 2 Com. Dig. 560, a, 4; 2 W. Black. 1640; Ld. Rayrm 442; 1 Salk. 133. That, by all the cases cited, it appeared, that the word assigned amounts to a covenant that the money shall be paid ; that it was immaterial, whether the assignment was legally made to Lynn or not; since, if he had assigned what he had not a right to assign, that would, in itself, be a breach, to support an action of covenant ; that a bill, originally negotiable, will be so in the hands of every indorsee, although the indorsement should not be to order. 1 W. Bl. 295; 1 Str. 557. And that as this bond was assignable in its nature, by virtue of an act of assembly, the defendant, having undertaken to assign it, rendered himself liable, in an action of covenant, to every subsequent assignee. And that, if a demand was at all necessary, it sufficiently appeared in the general allegation in the declaration. [MAJORITY — The Chief Justice] The Chief Justice now delivered the unanimous opinion of the court: That the assignment by Joseph Parker to Joseph Lynn was not an assignment according to the act of assembly (1 State Laws 77), but only a transfer of the equitable interest in the bond ; and that Joseph Lynn could not, by virtue thereof, maintain an action against the obligor, in his own name. The bond was payable to Lestarjette ; and, although Parker might have released it, it could only, at common law, be sued or assigned by the former. See Jenk. Cent. 221, ea. 75. That Joseph Lynn, the defendant, only assigned his equitable interest in the bond to George Turner. It appears, indeed, manifestly, by tht previous assignment of Jacob Parker (which was equally known to Turner and to Lynn), that he had no other interest to assign. It is, therefore, the mere transfer of a chose in action : and even if an action of covenant might have been brought by George Turner against Lynn, on the word assigned ; yet no such action could be maintained against him, by the present plaintiffs, as Lynn’s assignment is not made to George Turner and his assigns. That the covenant implied by the word assigned, extends only to this, that the assignee should receive the money from the obligor to his own use ; and if the obligee should receive it, that, then the assignor would be answerable over for it. By the Court. — For these reasons, let judgment be entered for the defendant. The decision in this case is said hy Judge Duncan (in Folwell v. Beaver, 13 S. & R. 316), to have “been the acknowledged law ever since;” and ne added, “if it were res integra, I, for my own part, would give no further effect to the word assigned.” In Folwell «. Beaver, it was held, that the indorsement in blank by the payee of a sealed note, did not make him liable to the holder. See also Elliot v. Miller, Addis. 269; Graham v. Gondy, Id. 55, and the note to Wheeler v. Hughes, ante, p. 23.