# Waters v. Millar

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1788.
WATERS verʃus MILLAR.
O
“ I promife to pay, or caufe to be paid, unto George Jeʃʃerow, or
“ order, the full fum of Ł.20. againft or before the 27th day of
“ November, 1785.”− This note was afterwards fold and delivered, for a valuable confideration, by Jerʃʃerow to the Plaintiff, but without any indorfement or written affignment; and the Defendant having refufed to pay it, this action was inftituted, in which the declaration, after ftating the note &c. proceeded as follows:−
“And whereas the faid George afterwards, to wit, on the 4th day
“ of November, in the faid year, in the city and county aforefaid,
“ the faid Ł.20 being wholly unpaid, for a valuable confideration
“ to him by the faid Nicholas (Waters) then and there paid, bar-
“ gained and fold the faid promiffory note to the faid Nicholas, and
“ poffeffion thereof to him then and there delivered; and in con-
“fideration whereof the faid Jacob (Millar) afterwards, to wit,
“ the fame day and year laft aforefaid, at the city and county aforefaid,“ at the fpecial inftance and requeft of the faid Nicholas,
“ affumed upon himfelf, and then and there promifed the faid
“ Nicholas that he would pay him the faid Ł.20. according to the
"tenor and effect of the faid note. Nevertheless the faid Jacob
"the faid fum of money, according to the tenor and effect of
"the faid note, hath not paid unto the faid Nicholas, &c.”
The queftion was, whether the Plaintiff could maintain the prefent fuit in his own name, upon the mere fale and delivery of the note, without any indorfement or affignment from Jeʃʃerow to him?
Sergeant, for the Defendant, having premiffed, that, if there was a confideration, it was immaterial to lay a promife to pay the note , and, on the other hand, that, it there was no confideration, the promife was nugatory and void, contended that a promiffory note, being a choʃe in action, was not affignable by writing at common law, much lefs by delivery alone: Com. L.B.E. 105. 3 Bac. Abr. 605. Salk. 129. Ld. Raym. 757. 774. and that this could not be likened to a note payable to Bearer, where poffeffion gives the action; Cun. L.B. E. 122. but it is the cafe of a note payable to one, or his order, which order muft be in writing to bring it within the ftatute. As, therefore, no indorfement, or affignment, is laid, the action cannot be maintained, in its prefent form. It is true, that the affignee of a bond may fue in the name of the obligee; and the Plaintiff might fue in the name of Jeʃʃerow; but, in that cafe, the Defendant could prove a fet off, and fhew the ballance to be in his favor. Of this advantage he would now, perhaps, be deprived ; nor would this action be final if a bona ƒide indorfee of Jeʃʃerow fhould hereafter appear.
Rawle,in oppofing the motion, obferved, that the verdict has cured all exceptions to the expreffions of the declaration; and that ​
1788.
the Plaintiff had an equitable right to recover, having bought the note for a valuable confideration; which, of itfelf, was fufficient to induce the Court to confider him as agent, or attorney, to do what Jeʃʃerow might have done; and an attorney,&c. who has naked authority to receive, may fue in his own name on a promife to pay to him. Lev. 188. 1 Vent. 318. 332. 2. Black. Rep. Term. Rep. He then infifted, that the fale and delivery were a good affignment without writing; which is not neceffary to a contract, otherwife than as evidence of it ; 3Burr. 1670. and, he contended, that there was a fuficient confideration for the aʃʃumpʃit laid in the declaration; that being, he faid, the material ground of the action, and not, as the adverfe counfel fuggefted, the mere poffeffion of the note ; that the Plaintiff's receipt for the money would be a fufficient difcharged from any claim on the part of Jeʃʃerow; and that, even if the promife were not ftrictly laid in the declaration, the practice of overlooking fimilar inaccuracies, in order to promote the juftice of the cafe, would fupply that defect. 3Bl. Com. 394. Salk. 29. 1 Wilʃ. 40. Salk 364. 1 Sid. 218. 1 Vent. 40. There is, however, at leaft, fo much confideration for the aʃʃumpʃit as the poffeffion of the note; and the queftion of daminfication could not come before the Court on the prefent motion, which is in arreft of judgment, and not for a new trial,–See Cro. E. 67. Hob. 4. 1 Sid. 31. Styl. 296. 1 Com Dig. 138.
SHIPPEN, Preʃident.– This is a motion in arreft of judgment, on the ground that no confideration is laid in the declaration to found the aʃʃumpʃit upon: Ans as it tends to deftroy the Plaintiff's action after a verdict given in his favor upon the merits, the Court would afford every aid in its power, confidently with law, to carry the verdict into effect; but they muft not depart from the eftablifhed principles of law, which are wifely calculated for general cafes, although in particular ones they may fometimes appear to be hard.
The declaration ftates, that “ the Defendant Jacob Miller gave
“ his promiffory note to one George Jeʃʃerow to Ł. 20. payable to
“ him or his order; that by virtue of the ftatute the faid Jacob be-
“came thereupon liable to pay to the faid George, or his order, the
“ faid fum of Ł.20 That the faid George, afterwards for a valuable
“ confideration bargained and ʃolf the faid note to the Plaintiff, and
"delivered him poffeffion of it; and that in confideration thereof, the
“ Defendant affumed and promified to pay the Ł.20 to the Plaintiff,
“according to the tenor and eƒƒect of the faid note.”
The queftion is, whether the ʃole and delivery of the note to the Plaintiff is of itfelf, without any indorʃement or aʃʃignment, a legal groud of the aʃʃumpʃit; for no other confideration is laid.
The note is a negotiable note, payable to Jeʃʃerow , or his order; the remedy, therefore, as upon the inftrument itfelf, is confined to Jeʃʃerow or his order ; and it would, indeed, be confined to Jeʃʃerow, himfelf, as a choʃe in action, if the act of Parliament, or act of Affembly, did not enable an affignee to fue in his own name. ​
1788.
There muft then be fome collateral matter, fome injury to the Plaintiff, or benefit to the Defendant, in the conʃideration itʃelʃ, laid as a ground for the affumption. If the Defendant had promifed to the Plaintiff, having poffeffion of the note, and a power to fue for the money (though not in his own name) that if he would forbear fo fue him, he would pay it ; or, if the promife had been in confideration of his delivering the note up to be cancelled; thefe promifes, though made to a perfon not having an affignment of the note, would perhaps have been fufficient to ground an aʃʃumpʃs : upon. But his is a bare promife to pay to the Planitiff, a ftranger, in confideration moving neither to, nor from, the Defendant, and which could not redound either to his benefit or injury.– Befides, the promife laid, is to pay to the Plaintiff, according to the tenor and eƒƒect oƒ the note, and the tenor and effect of the note was to pay to Jeʃʃerow, or his order, and not to any perfon to whom he fhould fell and deliver it. It the note had been payable to Jeʃʃerow, or Bearer, a bona ƒide purchafer of it might have maintained the action ; becaufe fuch notes pafs by delivery: But a note payable to order, muft be aʃʃigned, to enable the holder to bring the action in his own name.
Bonds in England are every day affigned, attended with irrevocable powers to fue for the affignees ufe: Such an affignment one would think would be full evidence of a fale and delivery, yet no actions are ever brought on that ground, but always in the name of the obligees.
We would intend every thing we could to fupport the verdict; but we cannot intend a confideration quite different from that which is laid, which we muft do in the prefent cafe, if we were to give our opinion in favor of the Plaintiff.
The judgment, therefore, muft be arrefted.