CUMMINGS v. LYNN, 1 U.S. 444 (1789)
Syllabus
U.S. Supreme Court
CUMMINGS v. LYNN, 1 U.S. 444 (1789)1 U.S. 444 (Dall.)
Cummings, Assignee
v.
Lynn
Supreme Court of Pennsylvania
September Term, 1789
This was an action of Covenant, and the circumstances under which it came before the Court, were these: The plaintiff filed a declaration in the following words;
'Joseph Lynn, late of the county of
Philadelphia, yeoman, was summoned to answer James Cummings,
assignee of James Campbell, and Stephen Kingston, who were
assignees of George Turner, or a plea that he hold with him the
covenants and agreements of him the said Joseph with the said
George made, according to the force, form, and effect of a certain
deed thereof by him the said Joseph, with the said George made,
&c. And thereupon the said James Cummings faith, that on the
6th day of February, in the year of our Lord, one thousand seven
hundred and eighty-four, at the county aforesaid, a certain
Nicholas Eveleigh, of the State of South- Carolina, by his certain
obligation, or writing obligatory, sealed with his seal, and to the
Court here shown, whose date is the day and year aforesaid,
acknowledged himself to be held and firmly bound unto a certain
Lewis Lestargette, in the sum of three hundred and sixty-four
pounds, twelve shillings, sterling money, in gold or silver specie
at the rate of four shillings and eight pence to the dollar, or one
pound one shilling and nine pence to the guinea, to be paid to the
said Lewis, his certain
attorney, executors, administrators and assigns, when he should
afterwards be thereto required. And the said James Cummings, in
fact faith, that the same sum of money, or any part thereof, being
in no wise paid or satisfied, a certain Joseph Parker, for whose
use and benefit the obligation or writing obligatory aforesaid, was
made as aforesaid, afterwards, to wit, on the twelfth day of May,
in the year of our Lord, 1784, at the county aforesaid, by his
certain deed of assignment on the obligation or writing obligatory
aforesaid, under his hand and seal duly made and executed, before
two credible witnesses, did assign, indorse and make over the
obligaton or writing obligatory aforesaid, to the said Joseph Lynn,
as by the same deed of assignment, to the Court here shown appears.
And the said James Cummings further in fact saith that the said
Joseph Lynn afterwards, to wit, on the 8th day of September, in the
year last aforesaid, at the county aforesaid, the said sum of
money, or any part thereo, being in no wise paid or satisfied, by
his certain deed of assignment on the said writing obligatory under
his hand and seal duly made and executed, before two credible
witnesses, did assign, indorse, and make over the said obligation,
or writing obligatory, to the said George Turner for value received
of him. And the said James Cummings further in fact saith, that the
said Joseph Lynn, in and by his said deed of assignment did
covenant and agree to and with the said George Turner, and his
assigns, that the sum of money aforesaid should be well and truly
paid to the said George Turner, or his assigns, agreeably to the
said obligation, or writing obligatory, as by the same deed of
assignment to the Court here shown appears. And the said James
Cummings further in fact saith, that the said George Turner
afterwards, to wit, on the 18th day of November, in the year last
aforesaid, at the county aforesaid, the said sum of money, being in
no wise paid, or satisfied, did by his certain deed of assignment,
on the said obligation or writing obligatory duly made and
executed, under his hand and seal, before two credible witnesses,
assign, indorse, and make over the said obligation or writing
obligatory, to the said James Campbell, and Stephen Kingston, and
their assigns, for value received of them, and by the same deed of
assignment the said George did then and there covenant with the
said James Campbell and Stephen Kingston, and their assigns, that
the said sum of money should be well and truly paid to the said
James Campbell and Stephen Kingston, or their assigns, agreeably to
the said obligation or writing obligatory, as by the same deed of
assignment to the Court here shown appears. And the said James
Cummings further in fact saith, that the said James Campbell and
Stephen Kingston afterwards, to wit, on the eighteenth day of
December, in the year last aforesaid, at the county aforesaid, the
said sum of money being in no wise paid or satisfied, by their
certain deed of assignment on the said obligation or writing
obligatory duly made and executed, under their hands and seals,
before two credible [1 U.S. 444, 446]
Opinions
v.
Lynn Supreme Court of Pennsylvania September Term, 1789 This was an action of Covenant, and the circumstances under which it came before the Court, were these: The plaintiff filed a declaration in the following words;
U.S. Supreme Court
CUMMINGS v. LYNN, 1 U.S. 444 (1789) 1 U.S. 444 (Dall.) Cummings, Assigneev.
Lynn Supreme Court of Pennsylvania September Term, 1789 This was an action of Covenant, and the circumstances under which it came before the Court, were these: The plaintiff filed a declaration in the following words;
'Joseph Lynn, late of the county of
Philadelphia, yeoman, was summoned to answer James Cummings,
assignee of James Campbell, and Stephen Kingston, who were
assignees of George Turner, or a plea that he hold with him the
covenants and agreements of him the said Joseph with the said
George made, according to the force, form, and effect of a certain
deed thereof by him the said Joseph, with the said George made,
&c. And thereupon the said James Cummings faith, that on the
6th day of February, in the year of our Lord, one thousand seven
hundred and eighty-four, at the county aforesaid, a certain
Nicholas Eveleigh, of the State of South- Carolina, by his certain
obligation, or writing obligatory, sealed with his seal, and to the
Court here shown, whose date is the day and year aforesaid,
acknowledged himself to be held and firmly bound unto a certain
Lewis Lestargette, in the sum of three hundred and sixty-four
pounds, twelve shillings, sterling money, in gold or silver specie
at the rate of four shillings and eight pence to the dollar, or one
pound one shilling and nine pence to the guinea, to be paid to the
said Lewis, his certain
Page 1 U.S.
444, 445
attorney, executors, administrators and assigns, when he should
afterwards be thereto required. And the said James Cummings, in
fact faith, that the same sum of money, or any part thereof, being
in no wise paid or satisfied, a certain Joseph Parker, for whose
use and benefit the obligation or writing obligatory aforesaid, was
made as aforesaid, afterwards, to wit, on the twelfth day of May,
in the year of our Lord, 1784, at the county aforesaid, by his
certain deed of assignment on the obligation or writing obligatory
aforesaid, under his hand and seal duly made and executed, before
two credible witnesses, did assign, indorse and make over the
obligaton or writing obligatory aforesaid, to the said Joseph Lynn,
as by the same deed of assignment, to the Court here shown appears.
And the said James Cummings further in fact saith that the said
Joseph Lynn afterwards, to wit, on the 8th day of September, in the
year last aforesaid, at the county aforesaid, the said sum of
money, or any part thereo, being in no wise paid or satisfied, by
his certain deed of assignment on the said writing obligatory under
his hand and seal duly made and executed, before two credible
witnesses, did assign, indorse, and make over the said obligation,
or writing obligatory, to the said George Turner for value received
of him. And the said James Cummings further in fact saith, that the
said Joseph Lynn, in and by his said deed of assignment did
covenant and agree to and with the said George Turner, and his
assigns, that the sum of money aforesaid should be well and truly
paid to the said George Turner, or his assigns, agreeably to the
said obligation, or writing obligatory, as by the same deed of
assignment to the Court here shown appears. And the said James
Cummings further in fact saith, that the said George Turner
afterwards, to wit, on the 18th day of November, in the year last
aforesaid, at the county aforesaid, the said sum of money, being in
no wise paid, or satisfied, did by his certain deed of assignment,
on the said obligation or writing obligatory duly made and
executed, under his hand and seal, before two credible witnesses,
assign, indorse, and make over the said obligation or writing
obligatory, to the said James Campbell, and Stephen Kingston, and
their assigns, for value received of them, and by the same deed of
assignment the said George did then and there covenant with the
said James Campbell and Stephen Kingston, and their assigns, that
the said sum of money should be well and truly paid to the said
James Campbell and Stephen Kingston, or their assigns, agreeably to
the said obligation or writing obligatory, as by the same deed of
assignment to the Court here shown appears. And the said James
Cummings further in fact saith, that the said James Campbell and
Stephen Kingston afterwards, to wit, on the eighteenth day of
December, in the year last aforesaid, at the county aforesaid, the
said sum of money being in no wise paid or satisfied, by their
certain deed of assignment on the said obligation or writing
obligatory duly made and executed, under their hands and seals,
before two credible
Page 1 U.S.
444, 446
witnesses, did assign, endorse, and make over the obligation or
writing obligatory to the said James Cummings, and by the same deed
of assignment, the said James Campbell and Stephen Kingston did
then and there covenant, with the said James Cummings, that the
said sum of money should be well and truly paid to the said James
Cummings, agreeably to the said obligation or writing obligatory,
as by the same deed of assignment to the Court here shown appears.
Yet the said Nicholas Eveleigh, or the said Joseph Parker, or the
said Joseph Lynn, or the said George Turner, or the said James
Campbell, or Stephen Kingston, the sum of money aforesaid, or any
part thereof, to the said James Cummings, although often required,
hath not paid, by reason whereof action hath accrued to the said
James Cummings, to demand and have the said sum of money of and
from the said Joseph Lynn: Nevertheless the said Joseph Lynn, the
same sum of money, or any part thereof, to the said James Cummings
hath not paid, although to do this the said Joseph Lynn afterwards,
to wit, on the 19th day of the same month of December, in the year
last aforesaid, at the county aforesaid, was, by the said James
Cummings required, but the same to him to pay hath hithereto
refused, and still doth refuse to the damage of the said James
Cummings, One thousand pounds, lawful money of the State of
Pennsylvania, and therof he bringeth suit, &c.'
The Defendant craved Oyer of the bond, condition, and
assignments stated in the declaration, which was given in the
following words:
'South Carolina.
'Know all men by these presents, that
I Nicholas Eveleigh, of the said State, planter, am held and firmly
bound unto Lewis Lestarjette, merchant, in the full and just sum of
three hundred and sixty-four pounds, twelve shillings, sterling
money, in gold or silver specie, at the rate of four shillings, and
eight pence to the dollar, or one pound, one shillings, and nine
pence to the guinea, to be paid unto the said Lewis Lestarjette,
his certain attorney, executors, administrators, or assigns: To
which payment well and truly to be made and done, I bind myself,
and each and every of my heirs, executors, and administrators,
firmly by these present, sealed with my seal, and dated the sixth
day of February, in the year of our Lord, one thousand seven
hundred and eighty-four.
'THE condition of the above
obligation is such, that if the above bound Nicholas Eveleigh, his
heirs, executors, or administrators, shall and do well and truly
pay, or cause to be paid, unto the above named Lewis Lestarjette,
his certain attorney, executors, administrators, or assigns, the
full and just sum of one hundred, and eighty-two pounds, six
shillings, sterling money, in gold and silver specie, at the rate
of four shillings, and eight pence to the
Page 1 U.S.
444, 447
dollar, or one pound, one shilling, and nine pence to the
guinea, with interest from the date hereof, on or before the first
day of January, which will be in the year of our Lord, one thousand
seven hundred and eighty-five, without fraud or further delay, then
the above obligation to be void and of non-effect, or else to
remain in full force and virtue.
N. EVELIEGH.' (L.S.) Sealed and delivered in the presence of
John M. Quenn.
'N. B. This bond is a renewal of an
old debt contracted by Col. M. Eveleigh to Mr. Jos. Parker, for the
above amount, in the year 1780.
L. LESTARJETTE.'
'I do hereby assign all my right,
title, claim, property, and demand of the within bond to Joseph
Lynn, of the city of Philadelphia, merchant, for his sole use and
benefit, for value received, 12th May, 1784.
JOS. PARKER.' (L.S.) Witness Cropley Rose, Alexander Major.
I do hereby assign at the request, and with the consent of the
above signed Joseph Parker, all my right, title, claim, property,
and demand, of, in and to the within bond, to George Turner, of
Philadelphia, for his sole use and benefit. Value received of him,
this twenty-eighth day of September, 1784.
JOSEPH LYNN.' (L.S.) Witness. [447-Continued.]
Cad, Morris.
I do hereby assign all my right, title, claim, property, and
demand of, in and to the within bond, to Messrs. James Campbell,
and Stephen Kingston, of Philadelphia, merchants, for their joint
use and benefit value of them received, this eighteenth day of
November 1784.
G. TURNER.' (L.S.) Witness Alexander Major. Henry M. Van
Slingen.
'We do hereby assign all our right,
title, claim, interest, property, and demand of, in and to the
within bond, to James Cumming, of Charleston, merchant, for his use
and benefit: Value received in account with him, Philadelphia, 18th
December, 1784.
JAMES CAMPBELL,' (L.S.)
STEPHEN KINGSTON.' (L.S.) Witness James Rankin, Alexander
Major.
Page 1 U.S.
444, 448
Upon this, the Defendant demurred for the variance between the
covenants stated and assigned in the declaration, and the covenants
appearing upon Oyer of the bond, condition, and assignments: And
upon a joinder in demurrer, the question was brought before the
Court, Whether this action of Covenant could be maintained on
Lynn's assignment? which was argued at the last term, by Tilghman
and Sergeant, for the Defendant; and Lewis and Ingersoll for the
Plaintiff.
For the Defendant, it was contended, in support of the demurrer,
that the assignment by Parker, was not within the act of assembly,
1 State Laws, 77. for Lestarjette was the legal obligee, and Parker
only the obligee in interest; and, as no suit could have been
maintained in Parker's name, arguments drawn from the act cannot
apply to support the present action, but the assignment must be
considered as made at common law.
That although Turner might have sued Lynn, yet, as it was only
an equitable assignment, which is the case in respect to all choses
in action, where positive law does not interpose, Turner's assignee
could not support such an action, 2 Vez. 181. 1 P. Will. 252. 2
Black Rep. 1140. Cro J 179. The assignment is only an authority to
receive the money; or, at most, a covenant, that, is Lynn received
it, he would pay it to his assignee. There is nothing like an
express covenant on the part of Lynn; though, relying on the word
assigned, it will, perhaps, be contended, that there is an implied
covenant. But, that (as it is already observed) is only an
authority to receive the money; and the assignor can be guilty of
no breach, unless he interferes with the recovery of his assignee.
1 L. Raym. 683. 3 Keb. 304. 2 L. 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 seal. See Ii Mod.
171. Cro. E. 157. But no action of covenant has ever been brought
in England by the assignee of a bond against the assignor, which
furnishes a strong argument that no such action will lie; 1 L.
Raym. 683 12 Mod. 553. And there has been no judgment of any Court
in Pennsylvania upon this point. The law is clear with respect to
chattels in possession, that then an express warranty is necessary.
2 Salk. 210. 1 Stra. 459. See Bull. N.P. 272. Promissory notes are
assignable to this effect by positive statute; for, at common law,
the indorsee could not sue the indorser in his own name. See 1
State Laws, 77.
That, at least, due diligence ought to have been used to obtain
the money from the obligor, as in the case of bills of exchange, or
promissory notes, where a demand should not only be proved, but
alledged, or it would be fatal on a writ of error. See Doug. In the
present case no action was ever brought, nor any other attempt
alledged to have been made for the recovery of the money, from the
person who was originally bound to pay it.
Page 1 U.S.
444, 449
For the Plaintiff, in answer to these objections, it was
insisted, that the assignment was under the act of assembly; and
the following books were cited, 1 Bac. Abr. 527. 30. 2 Com Dig. 560
a 4; 2 Black. Rep.1640. L. Raym. 442. 1 Salk. 133. That, by all the
cases cited, it appeared, that the word assigned amounts to a
covenant that the money should be paid; that it was immaterial
whether the assignment was legally made to Lynn, or not; since, if
he had assigned what he had not a right to assign, that would in
itself be a breach to support an action of covenant; that a bill,
originally negotiable, will be so in the hands of every indorsee,
although, the indorsement should not be to order. 1 Black. 295. 1
Stra. 557. And that as this bond was assignable in its nature, by
virtue of an act of assembly, the defendant, having undertaken to
assign it, rendered himself liable in an action of covenant to
every subsequent assignee. And that if a demand was at all
necessary, it sufficiently appeared in the general allegation in
the declaration.
The Chief Justice now delivered the unanimous opinion of the
Court; That the assignment by Joseph Parker to Joseph Lynn was not
an assignment according to the act of assembly (i State Laws 77.)
but only a transfer of the equitable interest in the bond; and that
Joseph Lynn could not by virtue thereof maintain an action against
the obligor in his own name. The bond was payable to Lestarjette;
and, although Parker migh have released it, it could only at common
law, be sued or assigned by the former. See Jenk. Cent. 221. ca
75.
That Joseph Lynn, the defendant, only assigned his equitable
interest in the bond to George Turner. It appears indeed manifestly
by the previous assignment of Joseph Parker (which was equally
known to Turner and to Lynn) that he had no other interest to
assign. It is, therefore, the mere transfer of a chose in action;
and, even if an action of covenant might have been brought by
George Turner against Lynn on the word assigned; yet, no such
action could be maintained against him by the present Plaintiffs,
as Lynn's assignment is not made to George Turner and his
assigns.
That the covenant implied by the word assigned, extends only to
this, that the assignee should receive the money from the obligor
to his own use; and, if the obligee should receive it, that then
the assignor would be answerable over for it.
By the Court: For these reasons, let judgment be entered for the
Defendant.
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