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gation. Retaining no harshness from the severity of study, his style possessed the purity and freshness - the rapidity without the turbulence- of the mountain stream. He had no arrogance, pride, or selfishness — in his intercourse with society he was gentle, modest, and unassuming. Like Agricola, in the beautiful language of Tacitus, “ ubi officio satisfactum, nulla ultra potestatis persona. Tristitiam et adrogantiam et avaritiam exuerat; nec illi, quod est rarissimum, aut facilitas auctorisatem, aut severitas amorem, diminuit.

W, G. M.


Can the assignee of a Scotch bond maintain an action in his

own name, in the courts of this country?


On the day of May, 1829, L. McA., at Paisley in Scotland, made his bond for £376 and interest to F. C., payable in eighteen months, at A. R's. banking house, in said Paisley. Obligor and obligee were Scotchmen and residents at Glasgow. On the —- day of February, 1829, the obligor duly assigned this bond to G. S. of Glasgow. Before the bond was due, the obligor came to Massachusetts, where he still remains. The bond not being paid when due, the assignee forwarded it for collection. By the Scots law, this bond is assignable, and the assignee may sue for the debt in his own name. Can he thus sue in Massachusetts; and if so, in what form of action? Or must the action be brought in the name of the obligee?


If I had not been forewarned that able counsel have given different opinions on the main question here presented, I should not have hesitated at all in advising that the assignee may sue in his own name. And on a considerate examination of the subject, I am still of opinion that he may so sue.

It is a familiar doctrine that the nature, validity and legal effect of a contract are governed by the lex loci contractus but that the remedy for violation of a contract must be pursued by the means prescribed by the lex fori. It is unnecessary to notice the exception to the former part of this doctrine, which obtains when a contract is made with reference to performance in another jurisdiction — for the bond in question was made payable in Scotland.

The case doubtless turns on this point, viz. Is the question, who shall be plaintiff, to be regarded as a matter of legal effect, or of remedy, within the rule above mentioned ? I am of opinion that it is the former.

The legal effect of the bond and assignment, made in Scotland, is to vest a legal interest and right of action in the assignee. I perceive no difference between this case and that of a promissory note made and indorsed in the State of New York, and sued by the indorsee in the courts of Connecticut, where such note is (or recently was) not negotiable. Yet such an indorsee was allowed, without question, to maintain a suit against the maker, in the Circuit Court of the United States sitting in Connecticut. 3 Day, 311, Stuart v. Greenleaf.

Certain judgments in Ireland are, by statute, made assignable, and the assignee is authorized to sue them in bis own name. And he may sustain an action on such assigned judgment, in the English courts. 3 Taunt. 82, O'Callaghan v. Thomond. See also Hammond on Parties, 101, (Amer. edition).

So assignees of a bankrupt may sue his debtors in a foreign jurisdicti n, if the debts are not required for his foreign creditors. Doug. 170, Le Chevalier v. Lynch. 3 Mass. R. 517, per Parsons, C. J.

1 East, 11, per Lord Kenyon. On principle and authority, therefore, I cannot doubt the right of the assignee of this Scotch bond to sue the obligor in his own name, in our courts.

I am aware of the case of Lodge v. Phelps, reported in 2 Caines' Cas. in Error, 321, and I Johns. Cas. 139, where the indorsee of a promissory note, given in Connecticut, inaintained an action against the maker, in the courts of New York. It is very clear that this decision is at variance with those before cited. But I cannot think it was rightly made. It seems to me that the legal effect of that note and indorsement was, by the ler loci contractus, to give not a legal, but an equitable, interest to the indorsee, to be enforced by suit in the payee's name, in the same manner as if the note had not (by its terms) been payable to his order. At any rate, the preponderance of authority (supposing the principle of the doctrine to be doubtful) seems to be on the side of the opinion which I have formed.

I have also seen the extrajudicial intimation in 10 Pick. 52, that a bail bond made in Maryland, where it is by law assignable, as it is in England, should be sued in Massachusetts (if it could there be sued at all) in the name of the obligee. I trust I shall not be deemed deficient in proper deference to the source of that intimation, when I say that it does not greatly shake my confidence in an opinion formed on the judgments and principles above stated.

If it be asked how, on this view of the matter, the doctrine of remedy is to be applied to the case in question, I answer, that the form of action, the process, and its incidents, are to be regulated by the ler fori. The peculiar form used in Scotland cannot be allowed here. If the obligor, since the assignment, has expressly promised the assignee to pay him, it seems from Innes v. Dunlop, 8 D. & E. 595, (and divers other analogous cases) that assumpsit would be a proper action. Whether such a promise has been made or not, I think debt, in the form used in England by the assignee of a bail bond, (2 Chit. Pl. 162) is the proper

action. I doubt not that covenant broken will lie on a bond for the payment of money, (1 Lil. Ab. 346) though this remedy is seldom adopted in such a case, and is never necessary.

By the common law, a foreign judgment is not, as a ground of action, regarded as a record, nor entitled to the credit of a domestic record. Hence, debt as on record is not, in England, the proper remedy, but assumpsit, or debt as on simple contract. Loffi, 150. Doug. 1. 4, note. 3 Taunt. 85, note. 6 Pick. 239. The remedy is thus conformed to the lex fori, according to my understanding of the meaning and application of the doctrine in question.

I am of opinion that this assignee cannot maintain an action in our courts, in the obligor's name, without his special authority. The bond is negotiable by the lex loci ; and the assignee seems to me to be in the condition of an indorsee of a negotiable note, who cannot, by virtue of the indorsement, sue in the payee's

16 Mass. R. 451, Mosher v. Allen.


T. M.

November 16, 1832.



ART. IV.-ADJUSTMENT OF LOSSES ON POLICY. The following case is stated. An insurance was made as follows:

On ship valued at $10,000, there was insured $11,000. On cargo cost $30,000 — insured $33,000.

There was a general average during the voyage of $5,000, adjusted as follows: Contributory value of ship, . $5,000. ship pays $500. 10

freight, 3,000. freight pays 300. per cargo, 42,000. cargo pays 4,200. 50,000

5,000 Previous to arrival of the vessel and the termination of the voyage a partial loss also took place of the cargo, viz.

The cargo, if sound, would have brought $50,000
Being damaged, it was worth only

Partial loss,


or 16 per cent. The question is, what sums are the underwriters on the ship and cargo to pay?

The following are the modes of adjustment adopted in different offices, and exhibit a strange contrariety of opivion.

1. Boston Marine Insurance Company, (G. Cabot, President.)

Partial loss on cargo, $33,000, 16 per ct. $5,280
General average on ship, (sum actually paid) 500
Do. on cargo, sum insured, $33,000
Less partial loss,

Contributory value, 27,720 at 10 per ct. 2,772
This office would pay,

$8,552 2. Salem Marine Insurance Company, (Jacob Ashton, President.) Partial loss on cargo,

$33,000 Less premium,


$30,000 at 16 per ct. 4,800 VOL. IX.-NO. XVII.


General average.

On cargo,

On ship, (actual contribution)

Less premium,


$30,000 at 10 per ct. 3,000 This office would pay

$8,300 3. Union Marine Insurance Company, (M. Townsend, President.) Partial loss on cargo,

$33,000 16 per ct. $5,280
General average, new apportionment.
viz. Ship valued in policy, $10,000


Contributory value, $ 55,000
As 55,000 : 5,000 :: 100 : 9, 09 per cent.
Ship insured at $11,000, at $9, 09

3,999, 60
Cargo do.

$33,000, at $9, 09 This office would pay

$9,279, 60 4. Esser Fire and Marine Insurance Company, (Nathaniel Bowditch, President.)

Partial loss of cargo, $33,000, at 16 per ct. $5,280
General average apportioned as in the case of Union

Insurance Co. say $9,09 per ct.
Vessel, sum insured, $11,000 ) 39,720 at 9, 09
Cargo, insured,


3,520 Less partial loss, 5,280,


This office would pay $8,800 5. Marblehead Marine Insurance Company, (Henry Gallison, President.)

Partial loss of cargo, $33,000, at 16 per ct. 5,280 General average.

Sum insured on vessel and cargo,

11,000 44,000 at 10
33,000) per ct.

This office would pay

$9,680 Such are the various adjustments upon the various principles adopted in the various oflices. It is remarkable that none of

per ct.

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