In Virginia, an endorsee of a promissory note cannot maintain an
action at law against a remote endorser.
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 2 March, 1798, by which
he promised to pay, sixty days after date, to the order of
Mandeville & Jameson $1,500 dollars for value received,
negotiable at the Bank of Alexandria. This note was endorsed by
Mandeville & Jameson, to James McClenachan, and by him to
Joseph Riddle & Co. the defendants in error. The protest of a
notary public, made on 5 May, 1798, attests that he had on that day
demanded payment of the note of the maker, who refused, and of
Mandeville & Jameson the first endorsers, who also refused, and
that James McClenachan, the other endorser, did not dwell in his
district. The record of a suit on the same note brought by Joseph
Riddle & Co. on 14 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 6 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 endorser between them.
This point alone was decided upon this writ of error.
Page 5 U. S. 298
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 endorsement 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.
Page 5 U. S. 299
It is therefore the opinion of the Court, that this action is
not maintainable, and that the judgment ought to be
Reversed.
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