Cummings v. Lynn

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THIS was an action of Covenant, and the circumstances under which it came before the Court, were these: The plaintiff filed a declaration in the following words;

{{quote|Joseph Lynn, late of the county of Philadelphia, yeoman, was summoned to answer James Cummings, assignee of James Campbell, and Stephen Kingson, 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 6th day of February, in the year of our Lord, one thousand seven hundred and eighty-four, at the county aforesaid, a certain Nicholas Eveleigh, of the State of South-Carolina, by his certain obligation, or writing obligatory, sealed with his seal, and to the Court here shewn, whose date is the day and year aforesaid acknowledged himself or be held and firmly bound into a certain Lewis Lestargette, 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 ​ ​ ​ ​

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. ​

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.