Page:United States Reports, Volume 1.djvu/459

448 

1789.

Upon this, the Defendant demurred for the variance between the covenants ftated and affigned in the declaration, and the covenants appearing upon Oyer of the bond, condition, and affignments : And upon a joinder in demurrer, the queftion was brought before the Court, Whether this action of Covenant could be maintained on Lynn's affignment? which was argued at the laft term, by Tilghman and Sergeant, for the Defendant ; and Lewis and Ingerʃoll for the Plaintiff.

For the Deƒendant, it was contended, in fupport of the demurrer, that the affignment by Parker, was not within the act of affembly, 1 State Laws, 77. for Leʃtargette was the legal obligee, and Parker only the obligee in intereft ; and, as no fuit could have been maintained in Parker's name, arguments drawn from the act cannot apply to fupport the prefent action, but the affignment muft be confidered as made at common law.

That although Turner might have fued Lynn, yet, as it was only an equitable affignment, which is the cafe in refpect to all choʃes in action, where pofitive law does not interpofe, Turner's  affignee could not fupport fuch an action, 2Vez. 181. 1 P.Will. 252. 2''Black. Rep.'' 1140. ''Cro. J.'' 179. The affignment is only an authority to receive the money ; or, at moft, a covenant, that, if Lynn received it, he would pay it to his affignee. There is nothing like an expreʃs covenant on the part of Lynn; though, relying on the word affigned, it will, perhaps, be contended, that there is an implied covenant. But, that (as it is already obferved) is only an authority to receive the money ; and the affignor can be guilty of no breach, unlefs he interfers with the recovery of his affignee.–– 1L.Raym. 683. 3Keb. 304. 2L.Raym. 1242. 12 Mod. 553. 1 Mod. 113. The law, indeed, will make a covenant where a man contravenes his agreement, by deed under hand and feal. See 11 Mod. 171. ''Cro. E.'' 157. But no action of covenant has ever been brought in England by the affignee of a bond againft the affignor, which furnifhes a ftrong argument that no fuch action will lie ; 1 L.Raym. 683 12Mod. 553 And there has been no judgment of any Court in Pennʃylvania upon this point. The law is clear with refpect to chattels in poffeffion, that then an exprefs warranty is neceffary. 2Salk. 210. 1 Stra. 459. See Bull.N.P. 272. Promiffory notes are affignable to this effect by pofitive ftatute ; for, at common law, the indorfee could not fue the indorfer in his own name. See 1 State Laws, 77.

That, at leaft, due diligence ought to have been ufed to obtain the money from the obligor, as in the cafe of bills of exchange, or promiffory notes, where a demand fhould not only be proved, but alledged, or it would be fatal on a writ of error. See Doug. In the prefent cafe no action was ever brought, nor any other attempt alledged to have been made for the recovery of the money, from the perfon who was originally bound to pay it. For