Supreme Court of United States.
*291 E.J. Lee and Swann, for the plaintiffs in error.
Simms, for the defendants.
*E.J. Lee. *292
Simms, contra.
Swann, in reply.
*297 Marshall, Chief Justice.
It is decided in Virginia that an action is maintainable by the assignee against the assignor, and not under the act of assembly.
*298 *February 26th. The Chief Justice delivered the opinion of the court.
*298 "The only question in this case is, whether an action of indebitatus assumpsit can be maintained by the assignee of a promissory note made in Virginia, against a remote assignor.
"The act of the Virginia assembly which makes notes assignable, gives the assignee an action of debt in his own name against the maker of the note, but is silent with respect to the claim of the assignee against the assignor. It was therefore long a doubt whether the assignor became liable on his mere assignment, without any special agreement, for the contents of the note, in the event of the insolvency of the maker. This doubt has at length been settled in Virginia, so far as to declare the liability of the assignor on such assignment; but not the amount for which he is liable. It seems to be yet a question whether he is answerable for the sum mentioned in the note, or for only so much as he received for it, provided he shall be able to prove the sum actually received. It is also a question whether the assignee can have recourse to any other than his immediate assignor.
"As the act of assembly gives no right to sue the assignor, such an action can only be maintained on the promise which the law implies from the assignment, and, consequently, can only be sustained by and against the persons to and from whom the law implies such a promise to have been made. As the assignment is made to a particular person, the law implies a promise to that person; but it raises no promise to any other. There is no fact on which to imply such promise.
"In the language of the books, there is a privity between the assignor and his immediate assignee; but no privity is perceived between the assignor and his remote assignee. The implied promise growing out of the endorsement, is not considered as having been made assignable by the act of assembly, and, therefore, the assignee of that promise cannot maintain an action of indebitatus assumpsit on it.
*"It is, therefore, the opinion of the court that this *299 action is not maintainable, and that the judgment ought to be reversed."[(a)]
[(a)] See note (A) in the appendix to this volume of reports.
