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MANDE. terial by what means notice is given. Doug. 138, LongVILLE & AL. champ v. Kenny.


In the case of Grant v. Vaughan, 3. Bur. 1516, the cases upon promissory notes before the statute of Anne are taken up and considered with great clearness and ability by the court. Every principle established in that case furnishes an argument for the original plaintiffs in this. The case there was, that Vaughan drew a check or order on his banker in these words 7pay ship Fortune or bearer

£.70.") and gave it to Bicknell, who lost it. It was found by some person, and honestly taken in payment for goods by the plaintiff, in his way of trade as a mercer. Payment of the check being stopped at the bankers, the plaintiff brought suit against Vaughan the drawer, and declared upon an inland bill, and for money had and received to his use. It was held that these notes are, by law, negotiable and were fo before the fiatute of Anne, and that the bearer of them might maintain an action as bearer, where he could entitle himself to them on a valuable confideration, and for this was cited Hinton's cafe, 2 Shower 235, in the reign of Charles 2d.

Crawly v. Crowther, 2 Freeman 257, in the year 1702, before the statute of Anne.

1. Salk. 126 pl. 5. Anonymous, roth Will. 3d. And Miller v. Race, 1. Bur. 452. 31 Geo. 2.

That the only dispute before the statute of Anne was as to the mode of declaring : but that it never was disputed “ that an action upon an indebitatus afumpfit generally for

money lent, might be brought upon a note payable to “one or order;" and cites 2d lord Ray, 758, Clerke v. Martin. “That upon the second,” lord Mansfield said, the “present case is quite clear, beyond all dispute. For un“ doubtedly, an action for money had and received to the “ plaintiff's use, may be brought by the bona fide bearer of

a note made payable to bearer. There is no case to the “ contrary. It was certainly money received for the use “ of the original advancer of it; and'if so, it is for the use 6 of the person, who has the note as bearer.

And Wilmot, justice, faid, that it was notorious, that fuch notes were in fact and practice negotiated.

« Probar

“ bly, the jury took upon themselves to consider, whether Mande“ such bills or notes as this is, were in their own nature VILLE & AL. “ negotiable ; but this is a point of law; and by law, they

RIDDLE are negotiable." And again he says, “ but this is a

& AL. “ negotiable note ; and the action may be brought in the “ name of the bearer. Bearer is descriptio perfonæ ; and “ a person may take by that description, as well as by any “ other. In the nature of the contract, there is no impro“ priety in his doing so. It is a contract to pay the bearer, « or to the person to whom he shall deliver it, whether it be “ a note or a bill of exchange ;) and it is repugnant to the “ contract, that the drawer fhould object that the bearer “ has no right to demand payment from him. The rea“fons given in the cases that are opposite to this are alto“gether unsatisfactory.” Even before the statute of 3 and “ 4 Anne, lord chief justice Holt himself thought, that an indebitatus assumpfit for money lent, or for money had and received, might be maintained upon such a note.”

And Yates, justice, said “ Nothing can be more peculi« arly negotiable than a draught or bill payable to bearer ; “ which is, in its nature, payable from hand to hand, toties quoties." It had been doubted, it is true, whether that species of action, where the plaintiff declares upon the « note itself as upon a specialty, was proper ; but here is a count upon a general indebitatus affumpfit, for money had and received to the plaintiff's use. The question, whether « he can maintain this action, depends upon its be“ ing afgnable, or not. The original advancer of the “ money manifestly appears to have had the money in the « hands of the drawer, and therefore he was certainly « entitled to bring this action. And if he transfers his “ property to ancther person, that other person may also « maintain the like action. Whoever has money in the « hands of another may bring such an action against him. “ This appears from the determination in the case of Ward “v. Evans, reported in 2 lord Ray, 930 ; where not a fbilling of money had passed between the plaintiff and defendant ; and yet Holt and Powell both held that an inden « bitatus asumpht for monies received to the plaintiff's. « use, properly lay.”

This case clearly shews, that actions upon promissory Rotes payable to bearer, or order, might have been main

MANDE- tained before the statute of Anne ; and that such actions VILLE & Al. did not depend upon the privity of contract. There cer

tainly is not more privity of contract between the drawer RIDDLE

of a note, and the bearer, (especially after that note has & AL.

been loft by the lawful owner, and comes to the hands of the plaintiff through the finder) than between the maker of a note payable to order, and the indorsee. It also shows, that there are certain inftruments, which are negotiable in their own nature by force of the contrazt itfelf, independent of statute law; and that a promifer may as well be described by being the bearer of a certain paper, as by being named with his christian and surname. And if he may be designated by the fact of being the bearer of a paper, there is no reason why he may not equally be defcribed by the fact of his being the nominee of a certain other person, and the holder of a certain note.

There is no doubt that before the statute of Anne notes were pafled from one to another, and actions for money had and received were, on common law principles, maintained by the bearers and indorsees. The indorsement was conlidered as conveying or assigning the money of the payee in the hands of the maker ; and the original contract of the maker was, to hold the money to the use of the payee or of such person as he should appoint. Privity of contract is not the ground of the action for money had and received. And among the many cases of that kind, there will be scarcely found one in which such a privity has existed. If I lose money, I may have this action againt the finder. If A. delivers money to B. to be paid over to C. the latter may maintain this action against B. If a man, under pretence of authority from me, receive money due to me, I may recover it of him in this form of action. So if I pay money to another by mistake. So if a man obtains money from me by fraud

from me by fraud and deceit. So if the consideration.of a bargain fail. So if one pretending to a right to an office receive fees, the rightful officer may, by an action for money had and received, recover of him the amount of fees so received.

The indorfer is a new drawer as to all the subsequent parties. He has received money from his indorsee which he engages to hold to his use, or to the use of such person as he shall appoint, in case the maker does not pay the note on demand. This principle results from the MANDE. custom of merchants ; for the moment a promiffory note ville & AL. payable to order, is indorsed, it becomes, in its nature,

RIDDLE independent of any statute, an inland bill of exchange, both in form and substance. The indorser orders the

,& AL. maker to pay to the indorsee, or his order, the sum of money mentioned in the note. The maker by signing the note acknowledges that he has effects of the payee, to the amount of the note, in his hands; and by making the note payable to the order of the payee, he authorizes the payee to draw upon him for that amount, and pledges himfelf to honour the draft. An acceptance may be made before the bill is issued, and is equally binding as if made after. Kyd. 48. 49. Che signature of the maker to the note is an acceptance of the payee's bill. No part or circumstance of a bill of exchange is wanting.

The plaintiffs below therefore were clearly entitled to recover the money from the defendants; and therefore the defendants ought not in justice and good faith to withhold it. In such a case there never has been a doubt but that the bill may be given in evidence on the count for money had and received.

Swann in reply.

If the indorser is liable, it must be under the act of assembly. But the act of assembly gives an action only against the maker, as is evident from the provision for allowing all just discounts, not only against the holder but against his assignor before notice. No case can be found of an action for money had and received brought by an indorsee against a remote indorfer, either before the statute of Anne or after. The cases cited are of a note payable to bearer.

If any action will lay, it must be on the statute of Virginia.

Marshall, chief justice.

It is decided in Virginia that an action is maintainable by the assignee against the assignor, and not under the act of assembly

MANDE. February 26th. The chief justice delivered the opinios VILLE & AL. of the court.


“ The only question in this case is, Whether an action “ of indebitatus afumpft can be maintained by the assignee “ of a promiffory note made in Virginia, against a re“ mote afsignor.

“ The act of the Virginia afsembly which makes notes « assignable, gives the assignee an action of debt in his own “ name against the maker of the note, but is filent with

respect to the claim of the assignee against the aflignora “ It was therefore long a doubt whether the aflignor. be“ came 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, fo far as to declare the “ liability of the affignor on such assignment ; but not the “ amount for which he is liable. It seems to be yet a quel« tion 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 fum actually re« ceived. It is also a question whether the assignee can “ have recourse to any other than his immediate assignor.

As the act of affembly gives no right to sue the af“ signor, 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 pro« mise 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 be“ tween the assignor and his immediate affignee; but no “ privity is perceived between the assignor and his remote « assignee. The implied promise growing out of the in“ dorsement, is not considered as having been made af“ fignable by the act of assembly, and therefore the af« signee of that promise can not maintain an action of « indebitatus affumi fit on it.

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