| N.C. | Aug 5, 1853
"Due Newton and Hayes nine hundred and thirty-seven dollars — six hundred and sixty-three dollars and seven cents to be paid to J. M. Martin when called upon, and the balance to be paid to said Newton and Hayes for value received of them. Witness my hand and seal 5 July, 1851. (Signed.) M. Fain. [Seal.]"
On the back of the said note is the following:
"For value received, I assign to John M. Martin six hundred (424) and sixty-seven dollars and seven cents in this note, with the interest on that amount from 5 July, 1851.
(Signed.) G. W. Hayes."
Upon the pleas of general issue and no assignment to plaintiff, the case was tried before his Honor, Ellis, J., at CHEROKEE, on the last *390 Spring Circuit. The plaintiff proved, and read in evidence, the bond and the assignment, and insisted on his right to recover the amount assigned to him. The defendant contended that before the plaintiff could recover there should be proof of a demand and nonpayment by Fain, and notice thereof to the defendant. His Honor instructed the jury that if they believed the testimony, the plaintiff was entitled to recover. There was a verdict for the plaintiff accordingly, and judgment having been rendered in pursuance thereof, the defendant appealed to the Supreme Court. In the court below, the defendant insisted that to fix him with liability, it was necessary for the plaintiff to prove a demand on Fain, the obligor, and nonpayment by him. His Honor was of opinion that the defendant was liable without such proof.
We are at a loss to see any ground on which the defendant was liable to pay the amount, even if such demand and nonpayment had been proven. He made no express promise to pay, and we are left to conjecture that his Honor was of opinion that a promise to pay was implied by some principle of the "law Merchant."
According to the "law Merchant," which is incorporated into the common law, a bill of exchange may be assigned by endorsement. This was an exception to the common law maxim, "choses in action cannot be assigned," and was forced upon the courts as soon as England aspired to be a commercial nation. A consequence of the assignment was to make the endorser liable for the amount of the bill, provided it was presented and due notice given of its dishonor. The statute of Ann makes (425) promissory notes assignable in the same way, as inland bills of exchange were assignable according to the law Merchant; and our statute makes notes under seal for the payment of money, assignable in the same way as inland bills of exchange and promissory notes.
The effect of the assignment is to vest the legal interest in the assignee, and to give him the right to sue in his own name upon the bill, note or bond. As a matter of course, therefore, the assignment must be of the whole bill, note, or bond. An assignment by piece meal of a part to one man, and a part to another, is an idea unknown to the law Merchant, and wholly repugnant to every principle of law and of good sense. If the payee can assign $663.07 of a bill, note, or bond to one man, and keep the balance himself, he may, on the same principle, divide it into smaller parts, and assign portions to fifty different men, all of whom *391 would acquire a legal title, and have a separate cause of action for their respective parts; so, there might be fifty law suits for different parts of one note. This is against reason, and is, therefore, not law.
The written statement made on the note by the defendant is not an assignment according to the law Merchant for another reason. An assignment can only be made by the payee, or the person having the legal title and right to sue. Newton and Hayes are the payees, and the defendant, in making the statement, does not profess to act for or in the name of the firm.
As there has been no assignment, according to the law Merchant, and a liability to pay is implied only from the fact of an assignment, it follows that the defendant is not liable, and the plaintiff has no cause of action against him. There is no express promise or guaranty, and there is no ground upon which a liability, either absolute or qualified, can be made by implication.
We are aware that there is a general impression among the people, that an assignment of any paper creates a qualified liability, and it is evident from the ground taken by the defendant on the trial below, that he supposed his assignment, according to the law Merchant, imposed upon him a qualified liability — viz., upon due notice of demand and nonpayment. In this, unfortunately for the plaintiff, there was a mistake. The common law, as distinguished from the law Merchant, required an express guaranty. The law Merchant implied a qualified liability from the fact of an assignment according to (426) the custom of merchants. What the plaintiff calls an assignment, among merchants has no legal effect, but is simply an entry or memorandum in writing.
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Knight v. R. R.,