v. Riddle. "The only question in this case is, whether an ac-Mandeville tion 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 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. VOL. I Nn * 299 A cause may, by act of congress, be transferred from tribunal to an practised and acquiesced un riod of years, the court will not shake control it. or STUART v. LAIRD. ERROR from the 5th circuit in the Virginia dis trict. An action of covenant was brought in January, one inferior 1801, in “the court of the United States for the middle other. circuit in the Virginia district," by John Laird, a citiA contem- zen of the state of Maryland, for and on behalf of porary exposition of the Laird and Robertson, of Port Glasgow, and subjects of constitution, the King of Great Britain, against Hugh Stuart, a citizen and inhabitant of the state of Virginia. der for a pe- At the rules, in February, 1801, there was an office fixes the con: judgment against the defendant for damages, &c. struction; and which damages," says the record, 66 are to be inquired of and assessed by a jury to be summoned by the marshal, and empannelled before the next court of the United States for the middle circuit in the Virginia district, which commences on the 22d day of May next ensuing, and so the cause aforesaid stood continued, by virtue of the statute in such case made and provided, until the court of the United States for the fourth circuit in the Virginia district, continued by adjournment and holden at the capitol in the city of Richmond aforesaid, on Thursday, the 17th day of December, 1801; at which day, to wit, at a court of the United States for the fourth circuit in the eastern district of Virginia, continued by adjournment, and holden at the capitol, in the city aforesaid, before the honourable the judges of the said court, came as well the plaintiff," &c. and the office judgment being set aside and issue joined upon the plea of covenants performed, there was verdict and judgment for the plaintiff; upon which a fieri facias issued, reciting, in the usual form, the judgment recovered "in the court of the United States for the fourth circuit in the eastern Virginia district," and returnable "before the judges of the said court at Richmond, in the eastern Virginia district, on the 26th day of April next." "Witness, Philip Barton Key, Esq. chief judge of he said court." *300 The return on this execution was as follows, viz. "Executed on Maria and child, Paul, Jenny, Selah, Kate and Anna, and a bond taken with Charles L. Car ter security, for the delivery thereof at the Eagle tavern, in the city of Richmond, on the 20th day of April, 1802, the condition of which was not complied with. Ben. Mosley, D. M. for The record then goes on to state, "that heretofore, to wit, at a court of the United States for the fifth circuit, continued by adjournment, and held at the capitol, in the city of Richmond, in the district of Virginia, before the honourable the Chief Justice of the United States, on Thursday, the 2d of December, 1802, came John Laird, on behalf of Laird and Robertson, by Daniel Call, gent. his attorney, and moved the said court for judgment and award of execution against Hugh Stuart and Charles L. Carter, upon a bond entered into by them for the forthcoming and delivery of certain property therein mentioned to the marshal of the eastern Virginia district, on the day and at the place of sale, which was taken by virtue of a writ of fieri facias issued from the court of the United States for the fourth circuit in the eastern Virginia district, against the estate of the defendant Hugh Stuart, which bond is in the words and figures following, to wit," &c. the condition of which refers to the fieri facias sued out of the court of the United States for the fourth circuit in the eastern Virginia district. *The defendants appeared and "showed as causes why the said execution should not be awarded, "1st. That the motion is authorized by no law of the United States, and by no part of the common law, and hath been hitherto in similar instances, or such as are nearly similar, used and admitted, and awards of execution, such as that now prayed for, made in the courts of the United States upon the construction of an act of congress approved on the 24th day of September, 1789, by virtue of which awards of execution in such cases have heretofore been made in the said courts, agreeably to an act of the general assembly of Virginia, passed on the 10th day of December, 1793: and the said defendants do aver that the said act of congress doth not make the laws of the several states rules of decision in the courts of the United States in Stuart V. Laird. * 301 Stuart V. Laird. * 302 any case whatever, except in trials at common law; and that no decision which can be given on the said motion will be a decision in a trial at common law. "2dly. That the said act of the general assembly of Virginia is in derogation of the common law, and deprives the citizen of trial by jury, and that the terms in all such acts prescribed should be regularly and strictly observed by all such as would entitle themselves to the benefit thereof, which hath not been done by the plaintiff in the present motion; first, because, agreeably to the said act, on forfeiture of such bond, the officer, who hath taken the same, shall return the same to the office of the court from whence the execution issued, the levying whereof gave him authority to receive the same; and that such court may, 'upon motion of the person to whom it is payable, after the obligor hath failed in the performance of the condition thereof, award an execution thereon; but neither the said act of assembly or congress, nor any other act of assembly or congress, or part of the common law, doth give such power to any other court; and the said defendant avers that it appears on the face of the notice grounding the plaintiff's motion, that the execution whereon the same was taken, was issued from the office of the court of the United States for the fourth circuit in the eastern Virginia district, where the judgment grounding the same is there said to have been obtained: and, 2dly. Because *that court doth not now exist, and this honourable court is a different court from that court; 3dly. That the act of congress passed on the 29th day of April, 1802, entitled "An act to amend the judicial system of the United States," in so far as it annihilated the court of the United States for the fourth circuit in the eastern Virginia district, wherein the said judgment was rendered, is unconstitutional and void, and doth not authorize this court to award an execution on the said bond on motion. "All which matters and things the said defendant doth aver as causes why this honourable court ought not to award execution on the said bond on the present motion, and is ready to prove the same as this honourable court shall direct; wherefore they pray judgment whether the court here will take further cognisance of Stuart the said motion." To this plea there was a general demurrer and joinder; and the court below being of opinion that the plea was insufficient, gave judgment for the plaintiff. To reverse that judgment the defendant Stuart sued out the present writ of error; and the errors assigned were in substance similar to those alleged in bar of the motion. C. Lee, for the plaintiff in error. The act of assembly of Virginia which gives this summary remedy upon forthcoming bonds, allows the motion for judgment to be made only to the same court from which the execution issued. In this case the execution issued from the court of the United States for the fourth circuit in the eastern Virginia district, composed of Judges Key, Taylor, and McGill. The motion was made to the court of the United States for t the fifth circuit in the Virginia district, holden by the Chief Justice of the United States. This is not the same court from which the execution issued. The motion, therefore, in this court, was not regular, unless it be made so by the acts of congress of March 8, 1802, c. 8. and 29th April, 1802, c. 31. The process in this case was summary, and the pleadings, although in *this instance they happen to be reduced to writing, are in fact ore tenus. A position will be taken the direct reverse of that contained in the second point of the plea mentioned in the transcript of the record. The court of the fifth circuit ought not to have taken cognisance of the motion; because the court of the fourth circuit did exist, and not because it did not exist, as alleged in the plea. If the acts of 8th March and 29th April, 1802, are constitutional, then it is admitted there is no error in the judgment; because, in that case, the courts ceased to exist, the judges were constitutionally removed, and the transfer from the one court to the other was legal. But if those acts are unconstitutional, then the court of the fourth circuit still exists, the judges were not removed, and the transfer of jurisdiction did not take V. Laird. * 303 |