# Cummings v. Lynn

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CUMMINGS, Affignee, verʃus LYNN.
T
“ Joʃeph Lynn, late of the county of Philadelphia, yeoman, was fum-
“ moned to anfwer James Cummings, affignee of James Campbell, and
“ Stephen Kingʃon, who were affignees of George Turner, of a plea that
“ he hold with him the covenants and agreements of him the faid Jo-
“ ʃeph with the faid George made, according to the force, form, and
“ effect of a certain deed thereof by him the faid Joʃeph, with the faid
“ George made, &c. And thereupon the faid James Cummings faith, that
“ on the 6th day of February, in the year of our Lord, one thoufand
“ feven hundred and eighty-four, at the county aforefaid, a certain
“ Nicholas Eveleigh, of the State of South-Carolina, by his certain
"obligation, or writing obligatory, fealed with his feal, and to the
“ Court here fhewn, whofe date is the day and year aforefaid ac-
“knowledged himfelf or be held and firmly bound into a certain
“ Lewis Leʃtargette, in the fum of three hundred and ʃixty-ƒour pounds,
“ twelve ʃhillings, fterling money, in gold or filver fpecie at the rate of
“ four ʃhillings and eight pence to the dollar, or one pound one ʃhilling and
“ nine pence to the guinea, to be paid to the faid Lewis, his certain ​
1789.
“ attorney, executors, administrators and assigns, when he should
“ afterwards be thereto required. And the said James Cummings, in
“ (illegible text) saith, that the same sum of money, or any part thereof, be-
“ ing in no (illegible text) paid or satisfied, a certain Joʃeph Parker, for whose
“ use and (illegible text) 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, as the county aforesaid, by his
“ certain deed of assignment on the obligation or writing obliga-
“ tory aforesaid, under his hand and seal duty made and executed,
“ before two credible witnesses, did assign, indorse and make over
“ the obligation or writing obligatory aforesaid, to be said Joʃeph
“ Lynn, as by the same deed of assignment, to the Court here shewn
“ appears. And the said James Cummings surther in sact saith that
“ the said Joʃeph Lynn asterwards, to wit, on the 8th day of Sept-
“ tember in the year last aforesaid, as the county aforesaid, the said
“ sum of money, or any part thereof, being in no wise paid or satis-,
“ sied by his certain deed of assignment on the said writing obligatory
“ under his hand and seal duly made and executed, before two cre-
“ dible witnesses, did assign, indorse, and make over the said obli-
“ gation, 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 Joʃeph Lynn, in and by his said deed of assign-
“ ment 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, agreeably to
“ the said obligation, or writing obligatory, as by the same deed of
“ assignment to the Court here shewn appears. And the said James
“ Cummings further in fact saith, that the said George Turner after-
“ wards, to wit, on the 18th day of November, in the year last afore-
“ said, at the county aforesaid, the said sum of money, being in no
“ wise paid, or satissied, 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, in-
"dorse, and make over the said obligation or writing obligatory,
“ to the said James Campbell, and Stephen Kingʃton, 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 Kingʃton, and their assigns, that that said sum
"of money should be well and truly paid to the said James Camp-
“ bell and Stephen Kingʃton, or their assigns, agreeably to the said ob-
“ ligation or writing obligatory, as by the same deed of assignment
“ to the Court here shewn appears. And the said James Cummings
“ further in fact saith, that the same James Campbell and Stephen King-
“ ʃton asterwards, to wit, on the eighteenth day of December, in the
“ year last aforesaid, at the county aforesaid, the said sum of mo-
“ ney being in no wise paid or satissied, 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 ​
1789.
“ witneffes, did affign, endorfe, and make over the obligation or
“ writing obligatory to the faid James Cummings, and by the fame
“ deed of affignment, the faid James Campbell and Stephen Kingʃton
“ did then and there covenant, with the faid James Cummings, that
“ the faid fum of money fhould be well and truly paid to the faid
“ James Cummings, agreeably to the faid obligation or writing obli
" gatory, as by the fame deed of affignment to the Court here fhewn
“ appears. Yet the faid Nicholas Eveleigh, or the faid Joʃeph Par-
“ ker, or the faid Joʃeph Lynn, or the faid George Turner, or the faid
“ James Campbell, or Stephen Kingʃton, the fum of money aforefaid,
“ or any part thereof, to the faid James Cummings, although often
“ required, hath not paid, by reafon whereof action hath accrued
“ to the faid James Cummings, to demand and have the faid fum of
“ money of and from the faid Joʃeph Lynn : Neverthelefs the faid
“ Joʃeph Lynn, the fame fum of money, or any part thereof, to the
“ faid James Cummings hath not paid, although to do this he faid
“ Joʃeph Lynn afterwards, to wit, on the 19th day of the fame
“ month of December, in the year laft aforefaid, at the county afore-
“faid, was, by the faid James Cummings required, but the fame to
“ him to pay hath hitherto refufed, and ftill doth refufe, to the da-
“ mage of the faid James Cummings, One thouʃand pounds, lawful mo-
“ney of the State of Pennʃylvania, and thereof he bringeth fuit, &c.”
The Defendant craved Oyer of the bond, condition, and affignments ftated in the declaration, which was given in the following words :––
“ South-Carolina.
“ KNOW all men by thefe prefents, that I Nicholas Eveleigh,
“ of the faid State, planter, an held and firmly bound unto Lewis
“ Laʃtarjette, merchant, in the full and juft fum of three hundred
“ and fixty-four pounds, twelve fhillings, fterling money, in gold
“ or filver fpecie, at the rate of four fhillings, and eight pence to
“ the dollar, or one pound, one fhillings, and nine pence to the
“ guinea, to be paid unto the faid Lewis Leʃtarjette, his certain attor-
“ ney, executors, adminiftrators, or affigns : to which payment
“ well and truly to made and done, I bind myfelf, and each
“ and every of my heirs, executors, and adminiftrators, firmly by
“ thefe prefent, fealed with my feal, and dated the fixth day of Fe-
“ bruary, in the years of our Lord, one thoufand feven hundred and
“ eighty-four.
" the condition of the above obligation is fuch, that if the above
“ bound Nicholas Eveleigh, his heirs, executors, or adminiftrators,
“ fhall and do well and truly pay, or caufe to be paid, unto the above
“ named Lewis Leʃtargette, his certain attorney, executors, admi-
“ niftrators, or affigns, the full and juft fum of one hundred, and
“ eighty-two pounds, fix fhillings, fterling money, in gold and fil-
“ ver fpecie, at the rate of four fhillings and eight pence to the ​
1789.
“ dollar, or one pound, one fhilling, and nine pence to the guinea
“ with intereft from the date hereof, on or before the firft day of
“ January, which will be in the year of our Lord, one thoufand
“ feven hundred and eight-five, without fraud or further delay
“ then the above obligation to the void and of non-effect, or elfe
“ to remain in full force and virtue.
N.EVELIEGH. (L.S.)
Sealed and delivered in the preʃence of JOHN M‘QUEEN.
“N.B. This bond is a renewal of an old debt contracted by Col. “M.Eveleigh to Mr. Joʃ. Parker, for the above amount, in the year “ 1780.
L.LESTARJETTE.”
“ I DO hereby affign all my right, title, claim, property, and “ demand of the within bond of Joʃeph Lynn, of the city of Philadelphia, merchant, for his fole ufe and benefit, for value received, “ 12th May, 1784.
CROPLEY ROSE,
ALEXANDER MAJOR.
“ I DO hereby affign at the requeft, and with the confent of “ the above figned Joʃeph Parker, all my right, title, claim, property, “ and demand, of, in and to the within bond, to George Turner, “ of Philadelphia, for his fole ufe and benefit. Value received “ of him, this twenty-eight day of September, 1784.
JACOB BAKER,
CAD MORRIS.
“ I DO hereby affign all my right, title, claim, property, and “ demand of, in and to the within bond, to Meffrs. James Campbell, “ and Stephen Kingʃton, of Philadelphia, merchants, for their “ joint ufe and benefit : Value of them received, this eighteenth “ day of November, 1784.
ALEXANDER MAJOR,
HENRY M. VAN SLINGEN.
“ WE do hereby affign all our right, title, claim, intereft, “ property, and demand of, in and to the within bond, to James Cumming, “ of Charleʃton, merchant, for his ufe and benefit : Value “ received in account with him, Philadelphia, 18th December, 1784.
JAMES CAMPBELL, (L.S)
ALEXANDER MAJOR. ​
1789.
Upon this, the Defendant demurred for the variance between the covenants ftated and affigned in the declaration, and the covenants appearing upon Oyer of the bond, condition, and affignments : And upon a joinder in demurrer, the queftion was brought before the Court, Whether this action of Covenant could be maintained on Lynn's affignment? which was argued at the laft term, by Tilghman and Sergeant, for the Defendant ; and Lewis and Ingerʃoll for the Plaintiff.
For the Deƒendant, it was contended, in fupport of the demurrer, that the affignment by Parker, was not within the act of affembly, 1 State Laws, 77. for Leʃtargette was the legal obligee, and Parker only the obligee in intereft ; and, as no fuit could have been maintained in Parker's name, arguments drawn from the act cannot apply to fupport the prefent action, but the affignment muft be confidered as made at common law.
That although Turner might have fued Lynn, yet, as it was only an equitable affignment, which is the cafe in refpect to all choʃes in action, where pofitive law does not interpofe, Turner's affignee could not fupport fuch an action, 2Vez. 181. 1 P.Will. 252. 2Black. Rep. 1140. Cro. J. 179. The affignment is only an authority to receive the money ; or, at moft, a covenant, that, if Lynn received it, he would pay it to his affignee. There is nothing like an expreʃs covenant on the part of Lynn; though, relying on the word affigned, it will, perhaps, be contended, that there is an implied covenant. But, that (as it is already obferved) is only an authority to receive the money ; and the affignor can be guilty of no breach, unlefs he interfers with the recovery of his affignee.–– 1L.Raym. 683. 3Keb. 304. 2L.Raym. 1242. 12 Mod. 553. 1 Mod. 113. The law, indeed, will make a covenant where a man contravenes his agreement, by deed under hand and feal. See 11 Mod. 171. Cro. E. 157. But no action of covenant has ever been brought in England by the affignee of a bond againft the affignor, which furnifhes a ftrong argument that no fuch action will lie ; 1 L.Raym. 683 12Mod. 553 And there has been no judgment of any Court in Pennʃylvania upon this point. The law is clear with refpect to chattels in poffeffion, that then an exprefs warranty is neceffary. 2Salk. 210. 1 Stra. 459. See Bull.N.P. 272. Promiffory notes are affignable to this effect by pofitive ftatute ; for, at common law, the indorfee could not fue the indorfer in his own name. See 1 State Laws, 77.
That, at leaft, due diligence ought to have been ufed to obtain the money from the obligor, as in the cafe of bills of exchange, or promiffory notes, where a demand fhould not only be proved, but alledged, or it would be fatal on a writ of error. See Doug. In the prefent cafe no action was ever brought, nor any other attempt alledged to have been made for the recovery of the money, from the perfon who was originally bound to pay it. ​
1789.
For the Plaintiƒƒ, in anfwer to thefe objections, it was infifted, that the affignment was under the act of affembly ; and the following books were cited. 1Bac.Abr. 527.30. 2Com.Dig. 560.a. 4; 2 Black.Rep. 1640. L.Raym. 442. 1 Salk. 133. That, by all the cafes cited, it appeared, that the word aƒƒigned amounts to a covenant that the money ʃhould be paid ; that it was immaterial whether the affignment was legally made to Lynn, or not ; fince, if he had affigned what he had not a right to affign, that would in itfelf be a breach to fupport an action of covenant ; that a bill, originally negotiable, will be fo in the hands of every indorfee, although, the indorfement fhould not be to order. 1Black. 295. 1Stra. 557.––And that as this bond was affignable in its nature, by virtue of an act of affembly, the defendant, having undertaken to affign it, rendered himfelf liable in action of covenant to every fubfequent affignee. And if a demand was at all neceffary, it fufficiently appeared in the general allegation in the declaration.
The chief justice now delivered the unanimous opinion of the Court ;––That the affignment by Joʃeph Parker to Joʃeph Lynn was not an affignment according to the act of affembly ( 1State Laws 77) but only a transfer of the equitable intereft in the bond ; and that Joʃeph Lynn could not by virtue thereof maintain an action againft the obligor in his own name. The bond was payable to Leʃtargette ; and, although Parker might have releafed it, it could only at common law, be fued or affigned by the former. See Frank. Cent. 221. ca. 75.
That Joʃeph Lynn, the defendant, only affigned his equitable intereft in the bond to George Turner. It appears indeed manifeftly by the previous affignment of Joʃeph Parker (which was equally known to Turner and to Lynn) that he had no other intereft to affign. It is, therefore, the mere transfer of a choʃe in action; and, even if an action of covenant might have been brought by George Turner againft Lynn on the word affigned; yet, no fuch action could be maintained againft him by the prefent Plaintiffs, as Lynn's affignment is not made to George Turner and his aʃʃigns.
That the covenant implied by the word aʃʃifned, extends only to this, that the affignee fhould receive the money from the obligor to his own ufe ; and, if the obligee fhould receive it, that then the affignor would be anfwerable over for it.
by the court :––For thefe reafons, let judgment be entered for the Defendant.