I PLAINTIFFS. 3. When interest as signed. (2). The acts for the encouragement and protection of Friendly Societies, enable them to sue in the names of their "treasurers or trustees for the time being;" and as the right or cause of action is vested by the statutes in such treasurers or trustees, (for the use and benefit of the society), they must. necessarily be the plaintiff (a). By the custom of merchants, the assignee or transferee of a bill of exchange or check on a banker, may sue therein in his own name (1). (z) 7 Bingh. 477. (a) 10 Geo. 4, c. 56, s. 21. (1) Where a banking corporation accepts a check of a third person for part of the amount of a note falling due, and also takes a new note for the balance, at the same time delivering up the old note; held, that in case the check is dishonored, an action would lie on the old note against the maker. Olcott v. Rathbone, 5 Wend. 490. So when a creditor receives a note or check for his debt, and gives a receipt in full, he is not concluded by his receipt, ib. 1 Cowen, 290; 9;Johns. 310. Nothing is considered as an actual payment which is not in truth such, unless there be an express agreement that something short of a payment shall be taken in lieu of it. The case of Kean v. Dufresne, 3 S. & R. 233, was thus. Dufresne held a note against Kean and Foster, who were partners. Subsequent to the dissolution of the partnership, Kean gave his own note for one of the firm. Dufresne got Kean's note discounted and applied the avails to the company's note. Held, that Dufresne might maintain action on the note of the firm; the note of Kean being dishonored. In that case, however, it did not appear that the old note had been given up. And Chancellor Loughborough, in ex parte Blackley, 7 Vesey, jun. 597, seems to consider that an important circumstance. But this circumstance is not decisive. It is but matter of evidence to show the nature of the transaction and the intention of the parties. Olcott v. Rathbone, 5. Wend. 490. See Chitty Cont. (6th Am. ed.) 767, note (1) and cases cited. In Massachusetts and Maine the giving of a negotiable promissory note is held prima facie evidence of payment of a simple contract debt for which it is given, ib. Whitcomb v. Williams, 4 Pick. 228, Cornwall v. Gould, 4 ib. 444; Wood v. Bodwell, 12 Pick. 269, 270; Des Cadillas v. Harris, 8 Greenl. 298, Newell v. Hussey, 18 Maine, 249. Where, however, the action was sued in the name of the cashier, and there was no evidence that the note had been transferred to him, or that the suit was instituted in his name by the direction of the bank, it was decided that he was not entitled to recover. The owner of a promissory note indorsed in blank can make whom he pleases the holder of it without divesting himself of all interest in it, and a suit may be sustained in the name of such holder; but the bare using of a person's name as plaintiff does not make him a holder or assignee. The cashier had the custody, but the bank had the legal possession. Olcott v. Rathbone, 5 Wendell, 490. The holder of a note payable to bearer, or of a note payable to order, and indorsed by the payee to him or in blank, may sustain a count for money had and received by proof of such note, 12 Johns. 90; 4 Pick. 421; but if a plaintiff cannot recover on the note as bearer or holder for the want of title or authority to sue in his own name, he cannot recover on the common counts. Olcott v. Rathbone, Wend. 490. A note was made payable at a bank for the purpose of being discounted to pay a specific debt, and the debtor procures a person to sign said note as surety; and he signs "A. B. surety;" and the bank not discounting the note, the creditor for whose benefit the note was made, may maintain an action upon such in the name of the bank-the latter assenting to such use being made of the note. Utica Bank v. Granson, 10 Wend. 314. The maker of the note thus signing, by operation of the law merchant, engages to pay the note, without any restriction as to the design or object for which it is made. Ib. In such case, the holder need not show such a consideration as is required where the note is wrongfully put in circulation. Where the object of the making fails, and it is sent into the world by fraud, the holder in such a case must show not only a valuable consideration, but that he took the paper in the usual course of business. 3 Kent's Com. 84; 20 Johns. 637. A consideration which would be valid between him and the person from whom he received it, might not be sufficient in such a case against the maker. These cases turn upon commercial principles, peculiar to negotiable paper, and are to be governed by the somewhat analogous doctrine relating to the liability of sureties and guarantors simply as such. Utica Bank v. Granson, 10 Wend. 314. An action on a note, payable to bearer, or indorsed in blank, may be maintained in the name of any person, without being required to show that he has an interest in it, unless he gains the possession of the note under suspicious circumstances. Ogilby v. Wallace, 2 Hall, 553. Thus, where the note was payable to order, and the plaintiff of record was a fictitious person who was non-suited at the trial; the note being the property of a TIFFS. 3. When An exception to the rule that a debt or chose in action cannot be as- I. PLAINsigned at law arises in the following case put by Buller, J., in Tatlock v. Harris (b); "Suppose A. owes B. £100, and B. owes C. £100, and the interest asthree meet, and it is agreed between them that A. shall pay B. the £100, signed. B.'s debt is extinguished, and C. may recover that sum against A." such cases an express agreement between all the parties that A. should be (b) 3 T. R. 180. Israel v. Douglas, Hen. Bls. 239. See also 3 B. and C. 855. 4 Id. In real party whose name was disclosed. The court, however, directed the nonsuit to be set aside, that the questions of fact in respect to the possession and prosecution of the note, might be submitted to a jury. Possession of a note, transferable by delivery merely, or endorsed in blank, is prima facie proof of title. Bayley v. Taber, 6 Mass. 451; Northampton Bank v. Pepoon, 11 Mass. 288; Pitts v. Keyser, 1 Stewart, 154; Johnson v. English, ib. 169; Smyth v. Hawthorn, 3 Rawle 355; Bean v. Hewit, 5 Wendell, 257; Jackson v. Heath, 1 Bayley, 355. A person to whom a negotiable note indorsed in blank was delivered for collection, may maintain an action on it. Little v. O'Brien, 9 Mass. 423. See Pitts v. Keyser, 1 Stewart, 154. Where possession of a promissory note has been obtained by fraud, the holder cannot bring an action on it against either of the parties to it. Talman v. Gibson, 1 Hall, 308. The holder of a promissory note negotiable by delivery may, under suspicious circumstances, be required to show that he has authority from the payee to receive the contents. Lee v. Ware, 1 Hill, S. C. 313. The mere depositary of a note payable to bearer, cannot sustain an action on it. Sherwood v. Where the defendant was the payee of a promissory note, and indorsed it to the plaintiff, who Where a note was indorsed by the defendant for the accommodation of the makers, who before the note was negotiated became insolvent, and the defendant requested them not to part with the note, and they promised not to negotiate it. Afterwards, it was passed to the plaintiff, who had notice of all facts. In an action on the note against the indorser, held, that the plaintiffs were not entitled to maintain their action. Skelding v. Warren, 15 Johns. 270. An indorsee of a promissory note, which is made payable to bearer, may maintain an action against the heirs, &c. of the maker, though the note was indorsed after the death of the maker, under the act 1 R. L. 316. Parsons v. Parsons, 5 Cowen, 476. A. was the holder of a note and passed it to B. as collateral security for the payment of a debt due to the latter; and the note being deposited in a bank for collection, the latter having neglected to give notice of the non-payment to the indorsers, held, that A. might maintain an action against the bank, although it appeared he had assigned his interest in the note to third persons. The plaintiff was the party injured, and he is entitled to the remedy which the law affords. M'Kinster v. Bank of Utica, 9 Wend. 46, d. Where a note has effected the substantial purpose for which it was designed by the parties, an accommodation indorser cannot object that it was not effected in the precise manner contemplated at the time of its creation. Upon that principle, the cases of Powell v. Waters, 17 Johns. 176, The Bank of Chenango v. Hyde, 4 Cowen, 567, and the Bank of Rutland v. Buck, 4 Wend. 66, were decided. See also 2 Gall. 233; Payson v. Coolidge, 2 Wheat. 66. But where a note has been diverted from its original destination, and fraudulently put in circulation by the maker or his agent, the holder cannot recover upon it against an accommodation indorser, without showing that he received it in good faith, in the ordinary course of trade, and paid for it a valuable consideration. Woodhull v. Holmes, 10 Johns. 231; Skelding v. Warren, 15 Johns. 275: Brown v. Taber, 5 Wend. 566; Vallets v. Parker, 6 ib. 615. In Coddington v. Bay, 20 Johns. 637, the English cases upon this branch of the law are very fully and ably reviewed. In that case Judge Spencer says, "I understand by the usual course of trade, not that the holder shall receive the bills or notes, thus obtained as securities for antecedent debts, but that he shall take them in his business, and as payment of a debt contracted at the time." Again, "all the cases cited have been decided on the ground that the notes or bills were taken in the usual course of trade, and for I. PLAINTIFFS. 3. When perty. come C.'s debtor instead of B. must be proved (c); and it must appear that A.'s debt to B. was ascertained and fixed (d). The common law confers on the grantee of the reversion of an estate an interest as- action in his own name upon such implied covenants, or covenants in law, signed. as are annexed to, and which run with, the reversion: as upon the reddenReal pro- dum, or word "demise," contained in the lease (e) (1). But at common law none but parties or privies to express covenants, as the parties or their heirs or devisees (f), could sue thereon, the privity of contract being in such case wanting; and the grantee of the reversion being therefore considered as a mere stranger (g). This defect was remedied by the statute [ 17 ] 32 Hen. 8, c. *34, s. 1, which transfers the remedy and right of action to the grantee, against the lessee or his assigns: although the grantee be not named in the lease (h). The Statute extends to the grantee or surren (c) 4 B. and C. 163; see 8 B. and C. 402. (e) 2 Lev. 206; 1 B. and C. 410; 2 D. and (f) As to action by heirs and devisees, post, 19 to 22. (g) See 3 T. R. 401; Platt on Cov. 527, 531; Bac. Ab. Covenant, E. Debt, C.; Com, Dig. Covenant, B. 3. (h) T. Raym. 80; Platt on Cov. 534. Where there is a further reversion, the second reversioner may also sue for the dimi nution in the value of his interest which may arise from the breach of covenant. See 3 Lev. 130, 209; 4 Bur. 2141; Platt on Cov. 537. Each reversioner will recover damages commensurate with his particular interest; Holt, Ni. Pri. Rep. 543; 1 Taunt. 194. But the grantee of the reversion of part of the premises cannot maintain ejectment upon a condition broken, 5 Co. 55 b; 2 B. and A. 109; the reason is, that a condition is entire and indivisible. a present consideration paid. Not one of the cases is like the present, where notes or bills thus passed were received in security of an antecedent debt." Judge Woodworth says, "in every case it appears that the holder gave credit to the paper, received it in the way of business, and gave money or property in exchange.”—“ Something must be paid in money or property, or some subsisting debt satisfied, or some new responsibility incurred, in consequence of the transfer of the paper. Viele, Senator, says, though an indemnity for prior responsibilities may be a sufficient consideration for some purposes, and between parties, &c. yet it cannot be taken as sufficient in principle to bar the owner of his title by a fraudulent transfer." (1) The doctrine that a covenant of warranty runs with the land, and enures to the benefit of the assignee of the covenantee, who may bring an action in his own name against the original covenantor for the breach thereof, is not questioned or denied. The only doubt upon this point was, whether, when a covenantee conveys with warranty, his grantee, upon eviction, could sue the original warrantor, or whether his remedy was confined to his immediate covenant of indemnity. The latter opinion was expressed in Kane v. Sanger, 14 Johns. 89; but the whole subject was fully reviewed and considered in Withy v. Mumford, 5 Cowen, 137, where the broad doctrine that the assignee may maintain an action against the original covenantor, whether the immediate conveyance was with or without warranty, was, upon a consideration and a review of all the cases, fully established. Coke Litt. 384, b. 385, a. 4 Cruise's Dig. 452, 3; Cro. Eliz. 503; Shep. Touch. 198, tit. Warranty, 2 Mass. 460; Booth v. Starr, 1 Conn. 244; See Suydam v. Jones 10 Wend. 180. Wyman v. Ballard, 12 Mass. 306. King v. Kerr, 5 Haw. 156. Clark v. Redman, 1 Blackf. 381. Williams v. Breeman, 2 Dev. 483. De Chaumont v. Forsyth, 2 Pensylv. 507. Markland v. Crump, 1 Dev. and Bat. 94. Griffin v. Fairbrother, 1 Fairf. 91. M'Crady v. Brisbane, 1 N. and M. 104. Tufts v. Adams, 8 Pick, 547. Shelby v. Hearne, 6 Yerg. 512. Norman v. Wells, 17 Wend. 148. Thomas v. Van Kapff, 6 Gill and Johns. 372. Clark v. Swift, 3 Metcalf, 390. Thompson v. Shattuck, 2 Metcalf, 615. The assignee of such a covenant is not effected by any equities existing between the original parties; thus, were premises were conveyed subject to a mortgage, and it was agreed at the time of the conveyance that the grantee should assume the payment of the mortgage, and pay to the grantor only the difference between the amount thereof and the sum agreed on as the consideration of the conveyance, and that the covenants of warranty and of quiet enjoyment should not be considered to extend to the mortgage, it was held, that such agreement could not be set up in bar to an action brought by the assignee of the covenantee who was evicted under the mortgage. Suydam v. Jones, 10 Wend. 180. I. 3. When deree of the reversion of a copyhold tenement (i); and to the grantee of the reversion of part of the premises, as well as to the grantee of part PLAINTIFFS, of the estate of reversion (k) And it applies to the grantee of a reversion, interest of a lease for life as well as for years (1); and where a tenant for life makes assigned. a lease in pursuance of a leasing power the remainder-man is considered to be an assignee of the reversion within the statute (m). But it does not relate to covenants entered into in a conveyance in fee or gift in tail (n); and where J. B. being seised in fee conveyed to the defendant and T. J. their heirs and assigns, to the use that J. B. his heirs and assigns, might have and take to his use a rent certain, to be issuing out of the premises, and subject to the said rent to the use of the defendant, his heirs and assigns; and the defendant covenanted with J. B. his heirs and assigns, to pay to him, his heirs and assigns, the said rent, and to build a house to secure it; and J. B. demised the rent to the plaintiff for a long term, it was held that the latter could not sue upon the covenants, for they were personal to J. B. and the rent was reserved out of the original estate, and there was neither privity of contract nor privity of estate (o). In general, in order to enable a person to sue as an assignee, he ought to come in of the same estate, as that in respect of which the covenant was made, and not by title paramount (p). And if a person, having only the equitable fee in freehold or copyhold, grant a lease and then devise the equitable fee to A., and A., after the death of the testator, acquire the legal estate from the person in whom it was vested at the time of the lease and devise, and then sell and convey the legal estate to B., the latter could not sue the lessee or his assignees, because he takes not any legal estate from the lessor (q). It is to be remembered that the statute has no effect on covenants which are collateral to and do not run with the land. Upon such covenants the [ 18 ] grantee of the reversion cannot maintain an action in his own name (r). After the grant of the reversion, the grantor cannot sue for breaches of covenant subsequently, committed by the lessee or his assigns (s), but his remedy for prior breaches is not (like the remedy by distress) destroyed (t). And as a chose in action is not transferable at law, the remedy for breaches of covenant, which occurred before the grant of the reversion, must necessarily be enforced in the name of the testator (u) (1). And rent ac (p) See Webb v. Russel, 3 T. R. 393; Platt on Cov. 341; Co. Lit. 215. (9) Seymour v. Franco, 7 Law Journal, part 2, K. B., page 18. Whitton v. Peacock, special case, June 1832, in C. P. argued by Mr. Coote and Wightman. Sherman, Attorney. Author's MS. (r) 5 Co. 17, Spencer's case; Co. Lit. 215 b; 1 Saund. 241 a. note 9, 5th ed.; 1 B. & C. 417; 2 D. & R. 670, S. C. The (s) 3 Lev. 154; 8 T. R. 394, arg. (t) Skin. 367. Carth 289, 12 Mod. 45. 2 Show. 133. (u) Cro. Eliz. 863. 4 M. & Sel. 56, 8 Taunt. 227. 2 Moore, 114, S. C. But for so much of the breach as continues after the assignment the grantee may sue. Mascal's case, Mo. 242. 1 Leon. 62, S. C. (1) Greenby v. Wilcocks, 2 Johns. 1. Bickford v. Page, 2 Mass. 455. Marston v. 4 I. PLAINTIFFS 3. When interest crued due before a conveyance of the reversion, will not pass to the grantee, but is at law as well as in equity severed from the inheritance (x). The statute 32 Hen. 8, refers only to the remedies for and against the assigned. assignees and grantees of reversions. The common law gives a remedy by action upon a covenant real annexed to the estate, and running with it, to the assignee of the assignee of such estate, against the original assignor, who conveyed his whole interest in the property (1). As if a party grant an estate in fee with a covenant for further assurance, and his grantee grant it over to A., the latter may maintain covenant against the original grantor, on the ground that a privity of estate subsists between them (y). So the assignee of the original grantee may sue the original assignor upon his covenant for quiet enjoyment; whether the interest assigned be an estate of inheritance or a chattel real only; and whether any estate remain in the covenantor or not (2). And if A. demise to B. rendering rent, and then A. assign the rent, the counterpart of the lease, and the benefit of the covenant to C. for the remainder of the term, the latter may maintain debt for the rent against B (a). [ 19 ] 4thly. Attornment by the tenant to the grantee of the reversion is not necessary in any of these cases to perfect the remedy of the latter, but the tenant shall not be prejudiced by any payment of rent to the grantor before he had notice of the grantee's title (b). In the case of a lunatic, the action upon a contract made with him should be brought in his name, not in the name of his committee (c). *When one or more of several obligees, covenantees, partners or others having a joint legal interest in the contract, dies, the action must be When one brought in the name of the survivor (2), and the executor or administrator of the deceased must not be joined (3) nor can he sue separately of several obligees, (c) 2 Sid. 124, 125. Ejectment must be brought in the name of the lunatic, for his committee is but a bailiff, and has no interest, Adams, Ej. 2d ed. 81, cites Hutten, 16. Hob. 215. 2 Wils, 130. But the committee may, by order of the Court of Chancery, grant leases, see 43 Geo. 3, c. 75, s. 14, and in such case the remedy would be by the committee. See further 6 Geo. 4, c. 74. 9 Geo. 4, c. 78. 3 Ham. 218; Williams v. Wetherbee, 1 Aik. 233; Sprague v. Baker, 17 Mass. 588; Mitchell v. Warner, 5 Conn. 497; Stewart v. Drake, 4 Halst. 139; Bartholomew v. Candee, 14 Pick. 171; Wheelock v. Thayer, 16 Pick. 68; Hackel v. Storer, 8 Greenl. 228. Pierce v. Johnson, 4 Vermt. 255. Richardson v. Dorr, 5 Vermt. 21. Davis v. Lyman, 6 Conn. 249. Clark v. Swift, 3 Metcalf, 390. Thayer v. Clemence, 22 Pick. 493. Tapley v. Labeaume, 1 Mis. 552. Innes v. Agnew, 1 Ham. 386. So an assignee of part may maintain an action pro tanto; and if the assignee has warranted the title or covenanted for the quiet enjoyment of his assignee, he may support an action for a breach, after the assignment, of covenants of Warranty and quiet enjoyment, contained in the deed to himself. Kane v. Sanger, 14 Johns. 89. Bickford v. Page, 2 Mass. 460. See as to the authority of Kane v. Sanger, and Bickford v. Page, the case of Withy v. Mumford, 5 Cow. 187; and Garlock v. Closs, 5 Cow. 143. Demarest v. Willard, 8 Cow. 206. (1) Withy v. Lumford, 5 Cow. 137. Demarest v. Willard, 8 ib. 206. Ante, 16 b. note. Clarke v. Swift, 3 Metcalf, 390. (2) Vide Bernard v. Wilcox, 2 Johns. Cas. 874. 1 Dal. 250. Penn. v. Butler, 4 ib. 354. Nixon v. M'Carty, 2 ib. 65, 66, note 5 S. and and R. 86; Bebee v. Miller, Minor, 364. Upon the death of a survivor the right of action rests in his personal representatives; and a joinder of the representatives of both obligees is a misjoinder, ib. (3) See Smith v. Franklin, 1 Mass. 480. Walker v. Maxwell, 1 Mass. 133. Morrison |