CORSER v. CRAIG, 6 F. Cas. 601

WASHINGTON, Circuit Justice, delivered the opinion of the court. The point reserved is, whether, under the circumstances of this case, the plaintiff is prevented, by the attachment and judgment, from recovering the sum found due by the verdict, for the use of Petit & Bayard.

In considering this, there are two questions which present themselves: First; did the bill of exchange, separately, or taken in con-nexion with the letter of the 22d March, from the plaintiff to Petit & Bayard, amount to an assignment and appropriation of the debt due from Craig, (and for which the bill was drawn,) to Petit & Bayard? and. secondly; if it did, is that right so far protected by law, that it could not be attached, in the hands of Craig, by other creditors of Corser, so as to defeat the right of Petit & Bayard? First; what is the nature of a bill of exchange?

The definition of it is, “an instrument, by means of which a creditor may assign to a third person, the legal, as well as the equitable interest in a debt raised by it, so as to vest in such assignee, a right of action against the original debtor.” 1 H. Bl. 602; Chit. Bills, 1, 2. It is an open letter of request, from one person to another, authorizing that person to pay the sum therein mentioned, to a third person; and is an assignment, to such third person, of a debt due from the drawee to the drawer.

If the drawee acknowledge that the debt thus assigned is due, by accepting the bill, then the holder may recover against him m his own name; bills of exchange being considered in favour of commerce, exceptions from the common law rules, respecting the assignment of choses in action. If the drawee refuse to accept, and pay the bill, the right of the holder, to the debt once assigned to him, is not thereby impaired; although he may not be entitled to recover the same in his own name, for the want of a promise to pay.

But he may sue the drawer, or the drawee, in the name of the drawer, for the debt originally due, in consequence of the implied contract of the assignor of a chose in action, that the debtor shall pay, and on failure, that the assignor will. The bill being retained after protest, by the assignee, is evidence, that the amount has not been paid by the drawer, or any of the endorsers. I see no possible mischief which can result from this doctrine.

For, if after payment refused, and protest made, the drawee should pay over the funds in his hands to the drawer, or to his order, without notice from the first assignee, that he should retain the bill, and look to him for the amount, so far as he was bound to pay; this would be a good defence against a suit brought in the name of the drawer'.

If, then, the debt in question was assigned to Petit & Bayard, by the bill of exchange, and the same remains still unsatisfied to them, and unpaid by the defendant; can third persons, creditors of Corser, but not claiming as assignees from him, defeat the fight of Petit & Bayard, by an attachment served on Craig, as the debtor of Corser V It is now a long time since those objections, which once existed to the assignment of choses in action, have ceased to be more than formal.

Courts of law, imitating the example of courts of equity, take notice of such assignments, and will, to every substantial purpose, give them effect; although they have not yet ventured to sustain an action brought in the name of the assignee. But the beneficial interest vested in the as-signee, is so far regarded, that the defendant is allowed to set off a debt due from the as-signee, in the same manner, as if the action had been brought in his name.

Regarding Petit & Bayard, therefore, as being substantially the plaintiffs in this action, and beneficially entitled to the debt, upon which this attachment is levied; they have a right to recover under the name of Corser, notwithstanding the attachment and judgment against him in the state court. Judgment must be entered for the plaintiff.

Whether it is necessary, that the interest of the cestui que trust, should be mentioned in the writ and declaration, need not be determined, because, if such be the rule, it is sufficient, if it appears in any part of the pleadings; and this replication states fully, the title of Petit & Bayard; which title the second issue is intended to try. See Winch v. Keeley, 1 Term R. 619.