Alston v. Taylor, 2 N.C. 439, 1 Hayw. 439 (1796)

Oct. 1796 · North Carolina Superior Court

2 N.C. 439, 1 Hayw. 439

HILLSBOROUGH,

OCTOBER TERM, 1796.

Alston v. Taylor.

Wiliiams, Judge, inclined to change the opinion expressed in the preceding case of Brown, Campbell & Co. v. Mdmr’s. of Craig and Cleary, a id to hold that unnegotiable paper, though endorse d, does not bind to the same diligence as negotiable instruments. Bonds made in Virginia and assignable by the laws of thai Stare, but not assignable by our laws, must be subject to our laws when the contract of assignment is made in this State. 4 deposition expressed to have been taken at the house of Manning, at Halifax (Va.) courthouse, when the notice was to t.rkt it at Halifax court-house, was rejected, although it was p’oved that Manning's house stood only about eighty yards from the court-house. The receipt of an Attorney now deceased, is admissible to provethe time when bonds were put into his hands for collection. A record of a court, certified properly, except a want of the seal of the court, is not admissible, unless it be certified that the court had no seal.

The declaration stated a count for money had and received to the use of the Plaintiff; another for money laid out and expended fop ttie use of the Defendant; another for goods, wares and merchandize sold and delivered ; and another special count as follows, to wit: And whereas also, the said Edmund f T-.-yior) was indebied to one John Henderson, in the sum of sixteen hundred and fifty I)0,in!*i5’ i'ie said Edmund, the «lay ami yeas' aforesaid, m the comity and district aforesaid,, did undertake and promise the said Lemuel (Alston) that if the said Lemuel would pay anti satisfy the said John, the stun of money last- aforesaid, so that he the said Edmund should he exonerated and discharged of and from the same debts, by him so owing to the said John, that he the said Edmund, it) consideration thereof, would well and truly repay him the stud Lemuel, the sums of money so by him to be paid to the said John, and would for that, purpose, empower and authorise him the said Lemuel, to ask, demand and sue for at law, in the name of him the said Edmund, sundry debt*; due and owing to him Edmund by one John Lewis, jun. at the rests of him Edmund ; and the money whet obtained by him Lemuel, to be applied towards the repayment and satisfaction of him Lemuel — and the said Lemuel avers, that he hath paid the said Henderson the sum of sixteen hundred pounds, for and on account of said Edmund, and hath procured him .Edmund to be dis-cha. ged and exonerated from the same, and hath in fact, used due diligence, to recover the monies due and owing by the said John Lewis, jun. to the said Edmund ; and hath for that purpose brought suits at law, and hath expended in the. necessary support, thereof, and for bis necessary cxpences in attending thereon, and in endeavoring to procure payment as aforesaid, from said Lewis, the sum of two hundred pounds; but hath not been able, to obtain any payment or satisfaction from said Lewis: ail of which the said Edmund afterwards, to wit. on the twentieth day of October, in (tie year 1793, at Gran-ville county aforesaid, liad notice : and was then and there, to wit, the day and place last aforesaid, requested by the said Lemuel, to pay and satisfy him the money paid wi said Henderson by him Lemuel, at the request of him Edmund as aforesaid, and for the costs and expenccs afores a ó o¡‘ him Lemuel. Said out and expended as aforesaid, in endeavoring to recover and collect the debts due to said Edmund, by John Lewis as aforesaid. Nevertheless, s'. tnis declaration the Defendant pleaded non assumpsit, and the cause now came on to he tried.

The Plaintiff produ-t d three several bonds, payable iti December, ¡779. 1780. 1781, by Lewis to Taylor; each of them endorsed with an assignment from Taylor to Alston, the Plaintiff, on the 10th of December, 1782 ¡¡ and he proved on his pari, that he agreed to take them, opon conditio» that if tie could not get (he money of Lewis, he should have recourse to Taylor; upon which Taylor assigned them. He proved also, that within two month', or less, from the date of the assignment, he applied to Lewis, and procured some negroes in part discharge of the debts; and that on die Oth of January, 1784, he put. the bonds into the ¡moda ot a» Attorney in Virginia, to bring suits upon ; which were brought accordingly the 27th of April, 1785'. That on the 10th of December, 1784, he. received seventeen thousand weight of tobacco as a further payment, and that in April, 1791 (the Defendant in the mean time having died) the suits were called and dismissed. That on the 19th of July, 1790, he caused writs to be issued against (he executors; and at July term, 1791, in Caswell County Court, he obtained judgment. That previous to this, the executors removed to South-Carolina, and that on the 26fh of April, 1791, he sued them upon these judgnumts in South-Carolina.That iu October, 1792, the judgments wefe reversed in this court for error in the proceedings ; and that in November following, the jury were impanm-lod upon Ids suits in South-Carolina, and found against him: and that on the 13 th of October, 1792, he, gave notice of these proceedings to Taylor, and (hat he intended to resort (o him. On the part, of the Defendant it was proven, that when, the contract was made, it was insisted on by Jllston, that the bonds should lie assigned by Taylor, to the end that if he failed to get the money of Lewis, he might then resort to Taylor ami that Taylor upon this made die assignment, saying the circumstances of Lewis are good, and if be does not pay you, come to me, and 1 will go with you and see you paid. That not long afterwards, within two months Alston bought some negroes from Lewis, and said lie could have, had more, but the price was rather too high — he thought it ¡post proper to wait till some future time, when he might have it in iiis power to make a better bargain ; and said to Taylor, you are clear, he has property enough, It was further proven, that the bonds endorsed were made in Virginia, and there payable.

Whyte for the Defendant

This is a new case. I have never in the course of my practice or reading met with «lie so circumstanced in alt respects. The bonds in question were given in Virginia, where they were assignable [)y the act of gad Geo. IT e. 33, s. 7, passed in the year 1748. The difficulty arises from tin- assignmeat having taken piare in this State — liad it been in Virginia, 1 tbiiik tlvrc could have been no question, but that the same contract would have been implied from the assignment, as is implied by law from the assignment, of all negotiable papers, namely, that the assignee should apply in a reasonable time for payment, and if he could not procure payment, that he should in a reasonable time give-notice thereof to the indorsee, and also that he intended to resort to him. These parties intended to vest an interest in the assignee by the indorsement. It was required for the very purpose of enabling t|»*> assignee to commence suils in his own name, and to nuke the indorser liable upon the event of ¡he indorsee noi being able to procure 'payment of die obligor. This evidently was the expressed intent of the parties, and I can see no rule of law to hinder that intent from taking effect, 'rítese bonds were in their original creation negotiable, and it cannot be Insisted they lost this qualify by being brought into this State. A contract of any kind made in one country, is in all other countries to be considered in the same light, and to have all the same qualities it. had in the country where made. Thus a debt in Virginia or the Indies, if sued upon in our courts, will draw the same rate of in-ierest as it would have done in the courts of those countries. A debt, contracted in France, which .would have been void-by the English law if contracted in England, shall be carried into effect in The English courts. 1 BL Rep,. 258. There can be no good reason for saying, that an instrument negotiable where made, should lose that quality by passing into another couniry. When once uttered, the l«ws of the country where'made, are a pledge to ail nations that the assignee may recover. When the obligor contracts to bind himself by such an instrument, he agrees with all mankind that he will pay it to.the as-signee. He agrees by the. very nature of the inst.i-ume.nt he makes, thai i' shall not be considered as a mere chose in actiou. 1. here then will be the injost ice to the obligor in'.saying, in hoec •vincula venisti, when you made flu instrument — you shall be bound by your undertaking to pay the assignee, as implico by law from the obligation you have entered into. Shall bo hot be coni nulled to paj the assignee, when he has engaged to do it, Without which engagement perhaps, evidenced by such an the obligee would not have contracted with him a* all ? When we see a negotiable instrument made, it is surely some evidence that the cmii'or was intended to have greater privileges with respect to the transfer of the debt, than if it was an instrument not possessing a transferable quality by law. Is there any reason that the laws of this S<ate should give fewer privileges upon these foreign contracts, than the laws of the country where they were made ? Shall -.e say ihat our own citizen who tías taken an assignment, shall no< sue in his own nunc, shall not be the proprietor in all respects by virtue of the assignment, when by going into the country where the contract was made, be will be. entitled 10 that advantage, and will be so considered ? On: courts are open for the inforcing of all legal contracts wherever made, according to their true meaning and intent; but according to the position L am now controverting, a man by removing himself from Virginia into this State, defeats that assig-nee who has taken his assignment her*-, of his remedy and interest entirely : or indeed, even if the assignment be taken in Virginia, foe títere is as much propriety in saying an assignment itt Virginia shall not ve-.t the property, as that an assignment here shall not do it. it is true bonds made here before the act of 1786. were not assignable, because the. assignment of chases in action tend to encourage litigation. When therefore a man entered into such an obligation, it was no part of the contract, but indeed the reverse, that he should be liable to be sued by an assignee. Such a bond therefore cannot be assigned in any part of the world ; but the exact opposite of diis is the case with all bonds made in Virginia, since the year 1748 : and I presume, the laws of no country will say, that the contract of the obligor shall be divested in his favor of any of its original stipulations, which were for the benefit of the obligee ; one of whirl) is with respect to Virginia bonds, that he will be liable to an assig-nee. As well migiit we say, that a promissory note or inland bill of exchange drawn in England, and assigned here to one of our citizens, shall not he recoverable here against the drawer or maker, as there is no law here to rentier them negotiable- — and as well might the English' courts s \y, you shall not recover before us beranse the contract of assignment was made in a country where these notes are not negotiable. Were it. the general law, the em ulating p*pr> of each country would immediately be confined within the limits of its own territory. We could fake nothing bm money from them — we could make, no use of the paper they circulate, nor they of that we circulate. The commercial credit of all would sustain a contraction, and become palsied. To avoid these mis-chiefs, it is a principle of the common law long ago established. that every assignment follows the nature, of the contract assigned : that is to say, if the original contract is made unrestriclively assignable, the assignment itself will convey to the holder an unrestricted power of assigning the instrument, and the same interest, property and .power that the first holder had. 2 Burr. Í225. I think therefore, it may well be assumed, that these bonds were originally negotiable ; they continued to be so w hen bro’t into this State ; and that, the assignment of them here, vested the whole interest in the assignee, and rendered the endorser a surety for the payment upon tlm observance of those terms and conditions on the part of the as-signee, which are implied ipso facto in the case of negotiable instruments from the assignment itself. Upon this foundation 1 shall proceed to inquire, whether there are not such circumstances in this case, as will discharge the endorser from this action. Wherever a note, and by parity of reason a bond, is assigned, its. resemblance to a bill of exchange commences, and not before ; and from that moment it. takes upon itself all the properties of a bill of exchange. The assignor of the note or bond, is the drawer ; the assignee, the payee ; and the obligor, the acceptor. Kidd on Bills, 34, 35. The engagement oftho ^‘dorser and endorsee are then exactly similar to Ihe engage,meats of the drawer and payee of a bill of exchange. The engagement of the drawer in the one case, and of the endorser in the other, is only conditional; namely, that if the paper be presented in a reasonable time, and payment not obtained from flie drawer, maker or obligor, and notice thereof, be given in reasonable time, that then lie wifi pay the debt himself. Kidd 117. The payee or en-dorsee is therefore bound, first to present the bill, or note or bond, in reasonable time; and secondly, if payment he refused or delayed, he must give notice in reasonable time to the drawer or endorser, of that circumstance, if lie fails in the performance of either of these requisites, the drawer in the one case, and the endorser in the other, is discharged 3 Bac. Jib. fit3, 614. This notice must be given to all the preceding parties to whom he means to resort. Ki&d 118, 119. It must not be simply, that payment has been refused or delayed, but moreover, that he does not intend to give credit to the drawee of the bill, or the maker of the note or bond, but that he means to resort to the endorser for payment. The purpose of the notice being to signify to the drawer of the bill, or endorser of the note, that the endorsee or payee looks to him for payment. Kidil 125, 126. 1 D. $ B. 169. 1 Salk. 127. These authorities all show, that the endorsee of a note, must give notice in reasonable time to the endorser of the note, of non-payment by the maker, and that be intends to resort to him the endorser. Now, has this been done in the present case? These bonds were endorsed on the 10th December, 1782, and Mston, the Plaintiff, gave no notice till the 3 3th of October, 1792 — a space of nearly ten years. In all this time, it does not appear Taylor knew of the non-payment by Lewis. Surely this cannot be said to be a giving of notice in reasonable time. Had notice been given in any reasonable, time after the assignment, and even at any liase before, the death of Lewis, which happened in the year 179(), in all probability, Taylor would have procured payment., as there is no doubt but that Lewis was during all the intervening time in very solvent circumstances. He is now dead — his estate divided among his legatees, and his executors removed to South Carolina. After the lapse of so many years, during which this alteration of circumstances to the prejudice of the creditor has happened, is it reasonable, that Taylor, the endorser, should now be compelled to submit to all the unfavorable circumstances that he might so easily have avoided, had it hot been for the negligence of the endorsee ? Both law and reason pronounce that such inconveniences being consequences of the Plaintiff’s neglect, shall fall upon him alone. He even did not bring suit upon the bonds till thirteen months had expired after the assignment. Sureh, he might have given notice to the endorser in less time than this. He lived as appears in evidence, in the neighborhood of the endorser, and not more than 50 or 60 miles from Lewis the obli-gor. But it is immaterial to dwell upon this circumstance, as the bringing of suit was no excuse for not giving notice of non-payment. That w as an act he was not bound to do by his engagement. His engagement was to apply in reasonable tíme for payment, and in case of non payment, to give notice in reasonable time, to the end that the endorser might procure payment himself. Perhaps Ite might have procured payment upon easier terms than a lawsuit would require. He is not therefore to be accountable, for the inconveniences resulting from the delay occasioned by the prosecution of a suit. The Plaintiff solely, who was the cause of the delay, must abide its consequences.

Upon this part of the case, therefore, I trust, it is not rash to conclude, that the Plaintiff must fail — he has given no such notice of non-payment, as the law, and the nature of his contract, required; and by his failure in that particular, has made, the bonds his own, and discharged the indorsee from his warranty. He. has not only failed to give notice, but soon after the assignment, having seen Lewis and conversed with him, and inquired into his circumstances, and received a partial payment of the bonds, he informed Taylor, the indorser, tfiat he considered him as clear from his suretyship or warranty of the bond ; thereby putting him info a state of security and inattention to the business for the future. Instead of this, bad tie then informed the indorser, that he could procure pay merit but for part.and looked to him for 1 he balance, Hiere is no doubt but the indorser would have taken measures to procure payment,and all the ineouveniences & difficulties which have sinee arisen, would have been prevented. How bard and unjust then would if be, after so much negligence, and such a declaration on the part of Mstnn, now to make the indorser liable ? But independent of the want of notice, and ibis declaration by the in-dorsee, ¡here is another circumstance in this case which will indubitably discharge the indorser — the indorsee received part of the money from Lewis, five or six negroes, within two month- after the assignment, and seventeen thousand weight of tobacco, on the tenth of December, 1784 ; and the rule is, that if the indorsee gives credit to the maker of ihe note, he thereby discharges the in-dorser; and the receipt of any part is a giving of credit to thr maker or obligor,-unless he give notice for the balance of its non-payment. 1 Show. 102. 1 L. Ray. 744. 2 Stra 745. i Wils. 48. Kidd on Bills 65. Bull, Nisi. Pri. 271. In the present case ;be indorsee received part, and delayed receiving the residue with the prospect of getting an advantageous bargain of Lewis afterwards ; and so far was be from intimating to Taylor any inteution to resort to him for the balance, that he expressly disc barges him. upon this point also he must fail. The Plaintiff however insists, that however the assignment might be construed so as to affect him, yet that is not. the contract he is going upon, he is going uno» a special contract set forth in the declaration, by which he is to have recourse to Taylor whenever it shall appear lie is not able to get the money of Lewis. His counsel well know it would not do to rob upon the assignment, and admit the bonds to be negotiable, and therefore they devised this special count, in which they chuse to consider them as unnegoliahte, and as having been passed to Mslon under a special parol contract. They abandon the assignment, or use it as ¡nade for a special pm pose subser-vieto to the parol contract. 1 apmehend the comb and jury will t.tke no notice of any parol agreement, when there is en agieement evidenced in scriptis, as there is in tisis case by tin- indorsement, which implies a very different contract from ¡hat attempted to be proven at tiie bar. The written assignment binds the holder to certain conditions, under pain of losing his recourse to (be. in-dorser ; the parol agreement as attempted to be proven, releases from the observance of any condition on his part, and gives him an absolute recourse at any distance of time in case of non-payment. Supposing the bonds to have been negotiable, the admitting of a parol contract to overturn or to alter the legal import of the indorsement, can never be tolerated ; no one would take a paper passing through many hands, in each of which the instrument might have been clogged with some secret parol contract, is would he liable to endless litigation. Such an admission, it is easy to perceive, strikes at the very existence of ail negotiable papers. Supposing the bonds to be unnegotiable, the parol testimony cannot be received to control the written agreement, because there is more certainty in relying upon that which is preserved unaiteied in writing, than in the wavering memory of any living witness — it cannot he regarded. 2 Bac. M. 309. 8 Rep 309. Gill). 5 ¿if 6. In either case we must apply ourselves solely to the consideration & consequences of the assignment ¡udmsed, and draw our conclusions from that only . What these consequences are, I have already considered, and they have turned out in favor of She indorser.

It is plain flie Plaintiff cannot recoves' on any of the general counts — there is evidence of money paid to she use of Taylor, hut there is ah» evidence w hich shews in the events which have taken place, that these bonds were received in payment for the money. They are in law made to be the bonds of the holder by the circumstances that have happened. They are absolute diichargesoft.be indorser. When an indorsed paper is kept an unreasonable time in the bands of the indorsee, the law deems it a payment «¡f a preceding debt by him who made the- indorsement. He cannot recover on the special count, admitting the parol evidence may he received, for that must be proven precisely as laid. The evidence is, that these bonds were assigned for the purpose, of enabling the assignee to sue in his own name, and to recover the money to Itis own use. This is the evidence both by the parol and written testimony. The declaration is, that he was to sue in the name oí' Edmund, and the money to be recovered to the use of Edmund, and to go as a satisfaction of Ills debt to Alstom The variance is palpable and material. The evidence cannot be taken to support the special count, and it must be deserted. But let it be granted as is contended for on the other side, that these bonds were not negotiable ; still the indorsement of them to Alston, bound him to use the same diligence to procure payment, and to give notice of non-payment in a reasonable time, as if they had been actually negotiable. For the proof of this position, I cite, 2 Wils. 353, which fully comes up to it. There the Plaintiff, being a creditor of the Defendant, received front him a draft not negotiable, and kept it by him without presenting it for payment four months : in which time the person upon w hum it was draw n, became insolvent. Though it was admitted an unnegotiable paper, yet bis negligence was deemed upon argument to have made it a payment and discharge of the debt due from the drawer. Upon each, or some of these points, I trust there will be judgment for the Defendant.

Davie for the Plaintiff.

This case is not at all connected with the rules relative to bills of exchange — these are the offspring of commerce, in which it is of the highest importance that all possible, punctuality be observed. In & country as commercial as England, no delays can be admifed without great danger to the party who passes a negotiable paper» The drawee may either be a merchant himself, liable to fail upon the loss of a ship the failure of a foreign correspondent, ami from u ¡hou-sand oilier causes, to which a.> he is hourly subject, it may be every hour expected — or if the drawee be not a merchant, he may he a manufacturer, or in other situations dependent for the money with which he intends to pay, on a merchant, subject to all these casualties. Many merchants in splendid circumstances,, by rim failure of a foreign house utterly unknown to their home dealers and corre-,pendents, suddenly, in the course of a day, h ive become bankrupts, and passed away like shadow's, it is very proper therefore ¡fi that country, that »lie receiver or holder of a negotiable paper, should be bound to apply for payment, without delay. Were that not a condition imposed by law, no one would be safe in passing a bill to another — ho never could know, though every minute in danger, when his liability ceased, nor when he. was certainly discharged from th<- recourse of the holder.— This would greatly check, if not destroy, the currency of a paper medium, promotive as it is of commercial designs. But with respect even to negotiable paper in this country, there is no necessity for such despatch $ the generality of the people here, are substantial, independent farmers, whose property and ciroumsfanoes are not subject to 1 he contingencies that are likely to befal manufacturers and others in England. It would be useless to adopt here, all the rales for accelerating- application for payment, and notice to ¡he endorser, that have been found necessary there. Ii is argued, that if this assignment cannot have 1be qualities contended for by'the Defendant, it was of no use, as.il nugatory in Alston to require if.— Though if vesled no property in Alston, yet it is attended with effects very important to him. The endorsement of a bond not negotiable, passes tin- equitable interest to the assignee- — he may maintain a suit in the name of the ob-ligee, which the obligee will not be permitted to dismiss at pleasure. Should he attempt a dismission, a Court of Equity will enjoin him — when the money is recovered, he may by virtue of tin- assignment apply it to his own use. The assignment will cause it to be no maintenance in him to "w-aicute the, suit in the name of the obligee — and the Sheriff when he levies the money by virtue of the oxeention issued on the judgment, may pay it to the- assignee, by force of the assignment, and he will be jus tided.— The assignment operates as a complete power given to the assignee to receive die money — such an assignment has these effects from 'be cont.i-an implied by ib" a-s ígn-ita nt. un'> fc'-tn natural equity ; but it partakes not ofa-ny of tin* qualifies of »» etido'-setnenr of a negotiable paper. These are derived, not from any principle of natural equity, but from rules found necessary from experience to be est- bilshed for the purposes of commerce— strict artificial roles prescribed by the custom of merchants, to obviate the inconveniences which would result •from transacting commercial affairs by moans of a paper credit, were, they nor established. They depend upon tisis custom, are ascertained by if, and are applicable to no contracts but such as are the subjects of that, custom. The bonds that gave rise to the present controversy, are indeed assignable by the law of Virginia : but that law adds to them in their assigned state, even when assigned in Virginia, no other circumstance attendant on bills exchange, but this, that the assignee may sue in his own name. That law does not say they snail he assignable in like manner as bills of exchange, or as promissory notes, or as the act of 3 & 4 Anne, c. 9. or our act of 1786, c. 4, did. From this omission in the act of Virginia, it is evident the Legislature intended no more, than to vest the property of the bonds in the assignee, for the purpose of enabling him to sue in his own name, and by that, means to exclude the obligor from any interference with the suit after its commencement. It was not made with a view of benefiting the commercial part of the community, hut simply to prevent the injustice of assignors ?y who as the law stood at the time of making the act, were deemed to be the real Plaintiffs, ant! to have at law a power over the suit — and by attempting to dismiss the suit, or to receive the money, or by contracting a debt after tire assignment, might either defeat the action of the as-signee, or compel him to resort to a Court of Equity for relief. All this was.prevented by saying, the assignment should vest a right of action in the assignee in bis own name — thus far the act ¡mended to go, and no further: and it manifests its design still more clearly, by providing that the Plaintiff, the assignee, in any suit brought by him, shall allow all discounts that the Defendant can prove, either against the P.aimiff himseif, or againsi the first obligee, before notice of :h assignm nt given so the Defendant — a circumstance evidently separating the case of these assignments, from those of papers negotiable by the custom of merchants. For by the rules of that cns-tom. the instrument in the hands of the assignee, is exempted from the operation of all payments and agreements whatever, except those apparent upon the instrument itself. This provision alone fully proves, that these bonds when assigned, were not intended to have any participation of the nature of bills of exchange, save only that which Í have before mentioned. They are not entitled to be otherwise respected in the light of bills of exchange, nor as possessing any of their characteristic properties, but only" that of vesting by assignment in the as-signee. In all events these bonds were not assignable by any law of this country, and if contracts are to be expounded by the laws of the country where made, as stated in 1 Bl. Rep. 258. as cited on the other side, the contract of assignment being made here, can only have the effect which the laws of this country will give it. — a power to sue in the name of the obligee, as set forth in the special count in this declaration. The contract being made here, must be construed by the laws of this country, in the same manner as the acceptance of a bill in one country, that was drawn in another, shall be subject as to the acceptance, to the laws of the country where that acceptance was made. 2 Strange 733. And as English or Indian interest is to be allowed in contracts made in th.o.se countries, and in the same manner as an English court will carry into effect a contract made in France, though void by the law of England had it. been made there. This one genera! principle governs the whole of these cases, that the law of the country where the contract was made, shall decide its legai consequences, its legal import and extent; and according to this principle, Virginia bonds when assigned in this country, have always been sued upon in the name of the obligee. This was one of the reasons the court went upon in reversing the judgments given in the actions in the County Court of Caswell. The action was there instituted in the name of the assignee, then permitted by the court after issue joined, to be altered, so as to appear to have been instituted in the name of the obligee. I do not deny but that the assignment of a bill or note, implies the obligation on the part of the assignee comended for by the Defendant’s counsel, but I say these bonds were not negotiable, and that therefore Hie assignment of them will not impose any such teems as the assignment of a bill or note would. — ■ It operates as a mere power to institute suits in the name of the obligee ; and is evidence against him of money had and received from the assignee, which evidence supports ‘one of the general counts in this declaration Then upon what ground stands the defence? Mr. Taylor has received our money ; the consideration for which was, that these bonds should be taken by the Plaintiff, and'should enable him to receive the money of Lewis. He has not been able to receive it — the, consideration has failed ; and wherever it does fail, the money advanced with a view to it, shall be refunded, and may be recovered back in an action upon an indebitatus assumpsit If a bill be given -for an hundred pounds, and the holder cannot get if .paid, he may demand the hundred pounds as a debt. 1 Com. 134. 3 Lev. 364. . Bull. Nisi Prius, 131. As to what shall bo deemed reasonable notice in the case iff negotiable papers, that depends entirely upon the nature of the transactions between the parties. In some cases ofdr «fts ■on bankers, the holder of the paper has been confined to a day, or one or two hours ; in other cases he has been limited to the nest post. What shall be deemed reasonable notice, can only be inferred from the nature and intent of the contract, and must depend in every instance upon its own peculiar circumstances — -no general rulecau ■be applied to all cases, except that genera! one of giving reasonable notice. Now' what was the true intent of this contract ? It was that the assignee should institute suits agiiust Lewis; the assignment, was made to give him a power so to do ; and that upon the event of his not getting payment from Lewis, he might resort to Taylor.— He was not by the nature of this contract (as if is generally understood in this country) to have any recourse to Taylor till after he had tried the event and issue of a lawsuit with Lewis. He was not bound to use diligence according to the technical signification of the word. Such assignments in this country, as they are explained by the common course <ff business, and as they are understood by the people, place the assignor in a situation not to be called upon till after actions commenced and tried against the obligors. Mslon did use as much diligence as it was in the power of any man to use — he received the bonds in 1782, on the 10th December — he applied for and received some part of the money soon afterwards — he continued to make repeated applications all through the year 1783, he sued soon after the year 1784, and immediately, upon the death of Lewis — and before his suits «ere dismissed from the docket of the court in Yiiginia, knowing that an abatement must take place, he sued the executors in this State — immediately upon obtaining judgment Itere, without any delay he followed them into Soutíi-Caroiina, and sued there, and before the determination of the suits there, discovering that these suits must be unsuccessful from the reversal of the judgments in this court,, within a day or two after the reversal,, he gave notice of all-these, transactions to Taylor. What more could he do ? And what more could Taylor have done himself?' He did not discharge Taylor from his liability by. Ids conversation upon his return from Lewis’s with the negtocs. You are clear — was replied to a question on the part of Taylor, about Lewis’s circumstances — the answer meant no more than that his circumstances are such as will indemnify you-, or render it very improbable you will ever be resorted to. He concluded by expressing a hope that a decir sion would be in favor of the Plaintiff.

Judge Wiiwams

Judge Haywood was concerned in this cause, and has left the bench. I am sorry for it, as. a cause similar to the present* came on at Salisbury at the last term, and his opinion was, that the rules respecting negotiable instruments did not apply to uune.go-tiable ones, though in fact passed by a debtor to his creditor ; I. mention this opinion now, because tho’ I then differed. I am not now sure but it was the right one. These bonds were not negotiable in this State, and. the. assign? ment made here.-according to the case, cited from Bl.Eep. must be governed by the laws of this country, and is to he considered as the indorsement of paper not negotiable, and may confer on the assignee only, the powers attributed-to such assignments in the argument for the Plaintiff; and if notice of non-payment-by the obligor is not necessary, the Plaintiff may probably be entitled . to re-, cover on the special, contract laid, in the declaration, which is, that the endorsee should sue in the name of the obligee, and in case of his not being able to obtain satisfaction, should resort to Taylor. The greater part of the time elapsed since the indorsement, has been employed, by’the indorsee in pursuing the obligor — be sued within thirteen or fourteen months, and lias continued to sue ever since. The jury found for the Plaintiff, and he had judgment.

Note. —The opinion of the court ex relatione. It is certain however, that it was in favor of a recovery — either upon the ground that an un-negotiable paper, though indorsed, does not bind the indorsee to the same diligence, as if it were negotiable ; or that the special contract not stipulating expressly for that diligence, the indorsee was not bound to use it, or that his suing within thirteen or fourteen months in his own name, was a using of sufficient diligence.

Note. — On the trial ot this causes the following points occurred and were decided. The Defendant offered a deposition, the notice for which was, that it would be taken on a certain day named, at Halifax court-house, in Virginia ; the caption expressed a taking on that day, at the house of Manning, at Halifax court-house ; and a witness sworn in court, proved that Manning’s house stood about eighty yards from the court-house.

Per Curiam

It cannot be received. The receiving of evidence by depositions, is only adopted from necessity. It is subject to many abuses. If we begin to say it may be taken at a place near that fixed upon by the notice, it will open a door to fraud. The p«rty may cause it to be taken near the place, whilst the adverse party may be waiting at the place appointed, in order to cross-examine. Besides, if we once say that to take it near the place will do, we shall never know where to stop,- it may be taken at a greater distance than eighty yards; one hundred for instance, or a quarter of a mile, and yet be said to be near. The deposition was rejected.

The Plaintiff offered the receipt of Mr. German Baker, late a counsel in Virginia, to fix the time when the bonds were put into his hands to be. sued upon ; and it was urged, that he was now dead, so that his deposition cannot be had ; and that the receipt is the best evidence of that fact we can offer. That it was the course of business for counsel to give receipts when they receive bonds to sue upon, and that therefore the evidence offered should be received. Courts had done the like on other occasions, when the course of business rendered it proper, as in the case of the merchant’s clerk who made the entries and died, and the merchant had no other means of proof but his hand-writing; it was admitted, as the course of business allowed of no better proof.

Per Curiam — Let the receipt be read, the course of business admits of no other proof. A record from one of the CountyCourtsofVirginia was offered ; it was certified by the clerk and presiding Justice, but no seal affixed, nor any certificate that there was no seal of the court. Per Curiam — Where there is no seal, it should be certified there was none. We cannot know that there is no sea), unless it be certified; and if i here be a seal, a record thus certified cannot be received, inasmuch as it is not attested in the most authentic way of which it is capable. In order to its admissioility therefore it must appear there i's no seal by which it can be attested. So it was rejected.