Page:United States Reports, Volume 1.djvu/381

370 

1788.

the Plaintiff had an equitable right to recover, having bought the note for a valuable confideration; which, of itfelf, was fufficient to induce the Court to confider him as agent, or attorney, to do what Jeʃʃerow might have done; and an attorney,&c. who has naked authority to receive, may fue in his own name on a promife to pay to him. Lev. 188. 1 Vent. 318. 332. 2. ''Black. Rep. Term. Rep. He then infifted, that the fale and delivery were a good affignment without writing;  which is not neceffary to a contract, otherwife than as evidence of it ;  3Burr.'' 1670. and, he contended, that there was a fuficient confideration for the aʃʃumpʃit laid in the declaration; that being, he faid, the material ground of the action, and not, as the adverfe counfel fuggefted, the mere poffeffion of the note ; that the Plaintiff's receipt for the money would be a fufficient difcharged from any claim on the part of Jeʃʃerow; and that, even if the promife were not ftrictly laid in the declaration, the practice of overlooking fimilar inaccuracies, in order to promote the juftice of the cafe, would fupply that defect. 3Bl. Com. 394. Salk. 29. 1 Wilʃ. 40. Salk 364. 1 Sid. 218. 1 Vent. 40. There is, however, at leaft, fo much confideration for the aʃʃumpʃit as the poffeffion of the note; and the queftion of daminfication could not come before the Court on the prefent motion, which is in arreft of judgment, and not for a new trial,–''See Cro. E.'' 67. Hob. 4. 1 Sid. 31. Styl. 296. 1 Com Dig. 138.

SHIPPEN, Preʃident.– This is a motion in arreft of judgment, on the ground that no confideration is laid in the declaration to found the aʃʃumpʃit upon: Ans as it tends to deftroy the Plaintiff's action after a verdict given in his favor upon the merits, the Court would afford every aid in its power, confidently with law, to carry the verdict into effect; but they muft not depart from the eftablifhed principles of law, which are wifely calculated for general cafes, although in particular ones they may fometimes appear to be hard.

The declaration ftates, that “ the Defendant Jacob Miller gave

“ his promiffory note to one George Jeʃʃerow to Ł. 20. payable to

“ him or his order; that by virtue of the ftatute the faid Jacob be-

“came thereupon liable to pay to the faid George, or his order, the

“ faid fum of Ł.20 That the faid George, afterwards for a valuable

“ confideration bargained and ʃolf the faid note to the Plaintiff, and

"delivered him poffeffion of it; and that in confideration thereof, the

“ Defendant affumed and promified to pay the Ł.20 to the Plaintiff,

“according to the tenor and eƒƒect of the faid note.”

The queftion is, whether the ʃole and delivery of the note to the Plaintiff is of itfelf, without any indorʃement or aʃʃignment, a legal groud of the aʃʃumpʃit; for no other confideration is laid.

The note is a negotiable note, payable to Jeʃʃerow, or his order; the remedy, therefore, as upon the inftrument itfelf, is confined to Jeʃʃerow or his order ; and it would, indeed, be confined to Jeʃʃerow, himfelf, as a choʃe in action, if the act of Parliament, or act of Affembly, did not enable an affignee to fue in his own name. There