5 U.S. 290
1 Cranch 290
2 L.Ed. 112
MANDEVILLE and JAMESON
JOSEPH RIDDLE & CO.
February Term, 1803
ERROR from the circuit court of the county of Washington in the district of Columbia.
The defendant in error instituted an action for money had and received by the plaintiff in error, the defendant below. The declaration contained this count only; to which there was a plea of the general issue.
The evidence in support of the declaration, was a promissory note made by Vincent Gray, dated at Alexandria on the 2d of March 1798, by which he promised to pay, sixty days after date, to the order of Mandeville and Jameson 1500 dollars for value received, negotiable at the bank of Alexandria. This note was indorsed by Mandeville and Jameson, to James M'Clenachan, and by him to Joseph Riddle & Co. the defendants in error. The protest of a notary public, made on the 5th of May 1798, attests that he had on that day demanded payment of the note of the maker, who refused, and of Mandeville and Jameson the first indorsers, who also refused; and that James M'Clenachan, the other indorser, did not dwell in his district. The record of a suit on the same note brought by Joseph Riddle & Co. on the 14th of June 1798, against Vincent Gray, the maker, prosecuted to final judgment and execution, upon which execution he was committed to jail and took the oath of an insolvent debtor, and was discharged on the 6th of February 1799.
An exception was taken at the trial in the circuit court to the charge of the court, the same being contrary to the request of the counsel of the defendant below. The court refused to charge the jury, that the action could not be maintained against the defendant, in that court; there being no intermediate indorser between them. This point alone was decided upon this writ of error.
In support of this action, the counsel for the plaintiff in error cited, Kyd on Bills, 175, (113, 114.) Contra were cited, 1 Strange, 479. Esp. N. P. 33. 2 Burr. 674. 2 Freeman, 257. 1 Salk. 126, pl. 5. 1 Burr. 452.
[Argument of Counsel from pages 291-297 intentionally omitted]
Mr. Chief Justice MARSHALL delivered the opinion of the court.
The only question in this case is, whether an action of indebitatus assumpsit can be maintained by the assignee of a promissory note made in Virginia, against a remote assignor.
The act of the Virginia assembly, which makes notes assignable, gives the assignee an action of debt in his own name, against the maker of the note, but is silent with respect to the claim of the assignee against the assignor. It was therefore long a doubt whether the assignor became liable on his mere assignment, without any special agreement, for the contents of the note, in the event of the insolvency of the maker. This doubt has at length been settled in Virginia, so far as to declare the liability of the assignor on such assignment; but not the amount for which he is liable. It seems to be yet a question whether he is answerable for the sum mentioned in the note, or for only so much as he received for it, provided he shall be able to prove the sum actually received. It is also a question whether the assignee can have recourse to any other than his immediate assignor.
As the act of assembly gives no right to sue the assignor, such an action can only be maintained on the promise which the law implies from the assignment, and consequently can only be sustained by and against the persons to and from whom the law implies such a promise to have been made. As the assignment is made to a particular person, the law implies a promise to that person; but it raises no promise to any other. There is no fact on which to imply such promise.
In the language of the books, there is a privity between the assignor and his immediate assignee; but no privity is perceived between the assignor and his remote assignee. The implied promise growing out of the indorsement, is not considered as having been made assignable by the act of assembly, and therefore the assignee of that promise cannot maintain an action of indebitatus assumpsit on it.
It is therefore the opinion of the court, that this action is not maintainable, and that the judgment ought to be reversed.
Last modified: October 1, 2009