V. MANDE VILLE. This subject may and ought to be contemplated RIDDLE in still another point of view. It has been repeatedly observed that the action against the endorsor is not given by statute. The contract on which the suit is maintained is not expressed, but is implied from the endorsement itself, unexplained and unaccompanied by any additional testimony. Such a contract must, of necessity, conform to the general understanding of the transaction. General opinion certainly attaches credit to a note, the maker of which is doubtful, in proportion to the credit of the endorsors, and two or more good endorsors are deemed superior to one. But if the last endorsor alone can be made responsible to the holder, then the preceding names are of no importance, and would add nothing to the credit of the note. But this general opinion is founded on the general understanding of the nature of the contract. The endorsor is understood to pass to the endorsee every right founded on the note which he himself possesses. Among these is his right against the prior endorsor. This right is founded on an implied contract, which is not, by law, assignable. Yet if it is capable of being transferred in equity, it vests, as an equitable interest, in the holder of the note. No reason is perceived why such an interest should not, as well as an interest in any other chose in action, be transferible in equity. And if it be so transferable, equity will of course afford a remedy. The defendant sustains no injury, for he may defend himself in equity against the holder as effectually as he could defend himself against his immediate assignee in a suit at law. The case put, of the sale and delivery of a personal thing, is not thought to be analogous to this. The purchaser of a personal thing does not, at the time of the contract, look beyond the vendor. He does not trace the title. It passes by delivery. But suppose the vendor held it by a bill of sale containing a warranty of title, and should assign that bill to his vendee; is it clear that, on loss of the property for defect of title, no recourse could RIDDLE V. MANDE- be had to the warrantor of that title? The court is not prepared to answer this question in the affirmative. It is contended that the endorsee of the note holds it subject to every equity to which it was liable in the hands of the endorsor. If this be admitted, it is not perceived that the admission would, in any manner, affect this case. It is also contended that the plaintiff can only recover what he actually paid. Without indicating any opinion on this point, the court considers it as very clear that the endorsement is prima facie evidence of having endorsed for full value, and it is incumbent on the defendant to show the real consideration, if it was an inadequate one. Usury has been stated in the argument, but it is neither alleged in the pleadings, nor proved by the testimony. It is urged that Mandeville and Jamesson are securities who have received no actual value, and that equity will not charge a security who is discharged at law. In support of this argument the case of a joint obligation is cited. It is true, that, in the case of a joint obligation, the court has refused to set up the bond against the representatives of a security. But, in that case, the law had absolutely discharged them. In this case, Mandeville and Jamesson are not discharged. They are not released from the implied contract created by the endorsement. It is the legal remedy which is obstructed; the right is unimpaired, and the original obligation is in full force. It is, then, the opinion of this court that, without referring to the depositions to which exceptions have been taken, a right exists in the holder of a pro missory note, at least where he cannot obtain payment at law, to sue a remote endorsor in equity.. Certainly, in such a case, the defendant has a right to insist on the other endorsors being made parties, but he has not done so; and, in this case, the court does not perceive that M'Clenachan is a party so material in the cause, that a decree may not properly be made without him. The decree is reversed, and the defendants directed to pay the amount of the note to the plaintiffs. The decree of the court was as follows: This cause came on to be heard on the transcript of the record of the circuit court for the county of Alexandria, and was argued by counsel. On consideration whereof, the court is of opinion, that the decree of the said circuit court, dismissing the bill of the plaintiffs, is erroneous, and ought to be reversed; and this court doth reverse the same; and this court, proceeding to give such decree as the said circuit court ought to have given, doth decree and order, that the defendants pay to the plaintiffs the sum of 1,500 dollars, that being the amount of the note in the bill mentioned, together with interest thereon from the time the same became due. RIDDLE V. MANDE VILLE. DULANY v. HODGKIN. ERROR to the circuit court for the district of The endorser of a promissory Columbia, sitting at Alexandria, in an action of asnote, who ensumpsit by the endorsee of a promissory note against dorses to give his immediate endorsor. The note was made by credit to the Weilborn, on the 1st of January, 1806, for 200 dol- is counterseculars, payable to Hodgkin or order 120 days after redby property pledged, is not date, negotiable at the bank of Alexandria. On the liable upon the note, and who V. MANDE- ney had and RIDDLE trial, the plaintiff did not produce any evidence of a suit against the maker, nor evidence of his insolvency, but proved that the maker never was an inhabitant of the district of Columbia, but resided in Albenote, nor in an marle county, in the state of Virginia; whereupon action for mo- the court, upon the prayer of the defendant, instructreceived, uned the jury that it was still necessary for the plaintiff less the plain- to prove, to the satisfaction of the jury, that he had the maker is brought suit upon the note against the maker, or insolvent, or that a suit against him would have been fruitless, before he could resort to the endorsor. which has pro- instruction the plaintiff excepted. tiff show that that he has brought suit ved fruitless. It is not suffi cient to show that the maker process of the court. 1 To which The plaintiff also excepted to the refusal of the of the note is court to instruct the jury that if they should be saout of the tisfied by the evidence, that at the time the note was reach of the given, it was endorsed by the defendant with a view of giving credit to the maker with the plaintiff, and that it was so understood; and if they should be further satisfied by the evidence, that the maker left in the hands of the defendant funds to pay the note, or otherwise counter-secured him for becoming endorsor of the note, the plaintiff is entitled to recover in this action, although the maker should not be proved to have been insolvent before the note became due. The declaration contained two counts; one upon the note, the other for money had and received. The case was submitted, without argument, to the court, who, after inspecting the record, on the next day, Affirmed the judgment, with costs. 5 YEATON v. FRY. YEATON V. FRY. igno a ERROR to the circuit court of the district of If the insuColumbia, in an action on the case upon a policy of rance be gainst all risks, insurance on the brig Richard, at and from Tobago blockaded to one or more ports in the West Indies, and at and ports and Hispaniola exceptfrom thence to Norfolk. The following clause was ed," a vessel inserted in the body of the policy. "This insu- sailing rance is declared to be made against all risks, block-rantly for blockaded port aded ports and Hispaniola excepted." And at the is covered by the policy. foot of the policy was the following memorandum : The exception "Warranted by the assured free from any charge, is not of the damage or loss, which may arise in consequence of port, but of seizure or detention of the property, for or on count of illicit or prohibited trade." On the trial of the general issue, four bills exception were taken in the court below by plaintiff in error. for the risk of ac- capture breaking the blockade. Copies of the of proceedings in the of the vice-admiralty court of Jamaica are admissible in evidence when ertified under court by the who is certified by a 1. The first was to the admission in evidence certain copies of the proceedings and decree of the the seal of the vice-admiralty court at Jamaica, ordering a sale to deputy regispay the salvage of the brig. The copies were trar, certified by the authenticated by the following certificates, viz. judge of the "Jamaica, ss. I, Adam Dolmage, Esq. deputy of court, who is Owsley Rowley, Esq. chief registrar and scribe of notary public. the acts, causes and businesses of the court of vice- Depositions, admiralty within the said island, duly constituted, taken under a appointed and sworn, do hereby certify and make sued at the inknown to all whom it doth or may concern, that the stance of the defendant, several sheets of paper writing hereunto annexed, may be read in in number fifteen, and marked or numbered from evidence by the plaintiff, No. 1. to No. 15. inclusive, do contain a true copy although the and transcript of certain process and proceedings, plaintiff had, moved, and prosecuted to interlocutory decree the time and in the said court, in a certain cause therein lately place of taking depending, entitled, "Brig Richard, Jacobs, mas-A vessel sailIn which cause Benjamin Jacobs hath duly ing ignorantly ter." had not notice of the same. |