A bond in an action upon which it would be necessary to assign
breaches and call in a jury to assess damages is not assignable
under the statute of Virginia.
Error to the Circuit Court for the District of Virginia in an
action of debt upon a bond dated February 3, 1784, the condition of
which was that if the obligor should pay to William Whetcroft, his
attorney, heirs, executors, administrators or assigns, the sum of
�3,000 current money of Virginia, on or before 1 January, 1785,
then the obligation to be void.
Provided that if the obligor, on application by the obligee at
the Town of Fredericksburg, on or after 1 January, 1785, should pay
to the obligee �3,000 in officers' certificates of a certain
description or should pay the interest of 6 percent from the date
of the bond, on such certificates, if not paid, and should annually
and punctually pay the said 6 percent
Page 10 U. S. 83
when applied to as before mentioned, in doing of which the
condition of the bond was to be dischargeable by payment of the
�3,000 officers' certificates, otherwise the bond was to have its
full force and effect.
Upon the pleas of payment and conditions performed, the verdict
and judgment below were for the plaintiff.
The defendant brought his writ of error.
LIVINGSTON, J. delivered the opinion of the Court as
On 3 February, 1784, the
Page 10 U. S. 84
plaintiff executed his bond to William Whetcroft in the penal
sum of �6,000, to which there is a condition in the following
"The condition of the above obligation is such that if the said
John Lewis shall well and truly pay to the said William Whetcroft
the full sum of three thousand pounds, current money of Virginia,
on or before 1 January, 1785, then this obligation to be void.
Provided and it is to be understood that in case the said Lewis, on
application by the said Whetcroft to him, in the Town of
Fredericksburg, on or after the said first day of January, shall
pay unto the said William, or his attorney, the sum of three
thousand pounds in officers' certificates issued under an act of
assembly passed November, 1781, for pay or arrearages of pay and
depreciation, or shall well and truly pay the interest of six
percentum from the date hereof, on the said certificates if not
paid, and shall moreover annually and punctually pay the said six
percent when applied to as before mentioned, in doing of which the
condition of this bond is dischargeable by payment of the said
three thousand pounds officers' certificates; otherwise the bond
shall have its full force and effect."
This bond was assigned to the defendant on 3 August, 1790, and
an action at law was brought on it in the name of the assignee in
the Circuit Court of the United States for the District of
Virginia, when judgment was rendered for the defendant.
On this judgment a writ of error has been sued out, and the
plaintiff alleges that the same should be reversed because the bond
on which this action is brought is not assignable under the laws of
Virginia so as to enable the assignee to prosecute at law in his
own name. Other causes of error have been assigned, but the opinion
of the Court being with the plaintiff on the first point, it will
not be necessary to take any notice of the objections which have
been made to the pleadings, or to the imperfect finding of the
Page 10 U. S. 85
A bond not being assignable at common law, the present question
must turn altogether on the statutes of Virginia. It seems to have
been for a long time doubted, after passing the act of 1748, c. 27,
whether any but bonds conditioned to pay money or tobacco were
assignable. That question was, however, at last settled by the
Court of Appeals in the case of Henderson v. Hepburn,
which it was decided that a bond with a collateral condition was
not, within the meaning of this act, assignable. With this decision
the Court not only feels no inclination to interfere, but thinks it
a fair and just exposition of the acts which had then been passed
on this subject. The bonds intended by the legislature were most
clearly such as were to become void on the payment of a sum certain
and where no intervention or assessment of a jury was necessary.
Bonds which require particular breaches to be assigned, damages on
which were to be estimated or liquidated by a jury, do not appear
to have been contemplated.
It being then settled that bonds with collateral conditions were
not assignable under the laws in force at the time of the making of
this assignment, it only remains to ascertain the true character of
the condition of the bond on which this action is brought.
Although by payment of �3,000 on or before a certain day, the
obligor might have discharged himself from the penalty, it was part
of the condition that on the application of the obligee by a
certain day, a payment in certain certificates, which were not
money, might be substituted. This created an alternative by which
the penalty might be discharged either by money or officers'
certificates, and although the consent of both parties might be
necessary to a payment in the latter way, still, as it made part of
the written contract, the Court cannot but perceive that on a
certain contingency, it was to be considered as a bond on which it
might, as it did, become necessary to assign breaches and call in a
jury to assess damages. If we look at the record, we shall find
Page 10 U. S. 86
parties, their counsel, and the jury treating it as a bond of
It is the opinion, therefore, of the Court that this bond was
not assignable under the laws of Virginia, and that the judgment of
the Circuit Court for the District of Virginia must be
Reversed and judgment on the verdict be arrested.