Page:Federal Reporter, 1st Series, Volume 5.djvu/415

 IN BS 800TH MOUNTAIN CONSOLIDATED MINING 00. 40S �It foUowB, then, as a necessary consequence, that the transaction between the Hazzards (the guarantors) and the plaintiff (the bank) cannot be upheld under the commercial law, 80 as to deprive the defendants of the defence pleaded in this suit. The "transfer and guaranty of collection" oper- ate as an aisignment only of the note. As such it is un- doubtedly good, but it carries with it no greater or higher obligation. At common law, choses in action were not assign- able. Not so now, however. Now they may be assigned so as to enable an assignee to sue thereon in bis own name, but the right of defence is stiU maintained, and any defence that^ could bave been made in a suit between the original partie» to the transaction can still be made in a suit brought by an assignee. �For these reasons I must hold that the defendants had th& right to defend against the note for want of consideration, and that the verdict of the jury is right and proper and must not be disturbed, even if the errors complained of were actu- ally committed by the court, �See Trust Co. v. Nat. Bank, 101 U. S. 68; Lamourieux v> Hewitt, 5 Wend. 307; MiUer v. Gaston, 2 Hill, 188. ���In re Sodth Mountain Consolidated Mining Co., Bankrupt. �{District Court, D. Oalifornia. January 10, 1881.) �1. MlNENS COBPOBATION— LiABILITT OP BHABEnOLDERS. �A mlning corporation, organized in accordanoe with tlje statutes of California, divided its capital stock into 100,000 sliares of the nomi- nal par value of $100 each, and issued such part of its stock to the- fonner owners of the mining pioperty as had been previously agreed' upon, and reserved the remainder for working capital and future sale ; but no subscription paper, memorandum of association, deed of settle- ment, or other document creating, eiftier expressly or impliedly, any ex contractu obligation to take ànd pay for, at their nominal par value, any shares of the stock, was signad by any of the shareholders. Held,. that such stoçliliolders ineurr'ed no liabillty ex contractu, elther express or implied, to pay in, either for the prosecution of the enterprlse or the i)ayment cl the det)ts of the Company, th& nominal par value of theIr shares. ����