Morrison v. Lovell

Maxwell, J. This was an action of assumpsit by Lovell against Morrison and Oakes, to recover from them 7,750 dollars, with interest thereon from the 13th day of January, 1863, the amount of a certificate of deposit in the Bank of Tennessee, at Chatanooga, bearing date April 7th, 1862, and assigned by Morrison and Oakes to Lovell, on the 13th of January, 1863. Judgment was rendered for the plaintiff for the amount claimed, which the defendants have brought here by supersedeas to be reviewed The first ground assigned for error is, that it was error to overrule the demurrer to the declaration, and to each count thereof. The declaration, and each count thereof, appears to be good, so that the court did not err in overruling the demurrer. It is contended in argument by counsel, on both sides, that the certificate of deposit is null and void because it was executed within the confederate lines in violation of law and of the policy of the government of the United States, forbidding commercial intercourse with the rebels. Although this proposition is admitted, it may not be out of place to say that the authorities fully sustain it. Coppell v. Hall, 7 Wallace, 542; Griswold v. Waddington, 16 Johnson, 348; The [350] Ouachita Cotton, 6 Wallace, 521; The United States v. Crossmeyer, not yet reported, but will probably be in 8 Wallace. The facts in the case show that the certificate of deposit was transferred and assigned by Morrison and Oakes to Lovell, at Charleston, Kanawha county, Virginia, a place inside of the Federal lines, in part payment of a valid debt, then due to Lovell and others. As to the legal effect of the transfer and assignment of the said certificate of deposit, the parties differ. On the part of the plaintiffs in error it is contended that the assignment is void/because of the illegality of the certificate, and therefore no right of action accrued to recover from them the amount received by them from Lovell, and that if such action can be maintained, it could only be after the use of -due and proper diligence to make the money off of the Bank of Tennessee. The assignment of the certificate of deposit is a new contract, entirely disconnected with the illegal act, founded upon a new and valuable consideration, and is to be governed by the law of the place where made. Armstrong v. Tolen, 11 Wheaton, 258; Nichols, Ex’r, v. Porter, 2 W. Va. Rep., 13; and the authorities there cited. It is apparent from the facts of the case, that the assignment was made to pay 7,75*0 dollars, part of an existing debt which Morrison and Oakes were in some way liable to pay. If the amount was not paid on the certificate of deposit, then Lovell would lose his debt, unless he could recover from Morrison and Oakes. As a general rule, the assignee cannot recover from the assignor the amount paid for the assignment, unless due diligence is used, without effect, against the debtor; but it is in no case necessary to pursue the debtor, if it be clear that such pursuit would be unavailing; as, if the obligor be insolvent at the time of the assignment; or when the note falls due; or where the note is a forgery; or where the maker is a married woman. Mackie v. Davis, 2 Wash., 281; Violett v. Patton, 5 Cranch, 142; Brown v. Ross, 6 Munf., 391; Caton and Veale v. Lenox, 5 Rand., 31; Burrill v. Smith, 7 Pick., 291; Erwin v. Downs, [351] 15 New York, 575. The certificate of deposit being null and void, it would clearly have availed nothing for Lovell to have pursued the bank, and he was therefore not required to do so before proceeding against the assignors. For these reasons, the order of the court rejecting the special plea offered by the defendant, the order and judgment of the court refusing to give to the jury the instructions which it refused to give, and giving the instructions which were given, and the judgment of the court refusing a new trial, were correct, and not erroneous, as claimed by the plaintiffs in error. The judgment will therefore be affirmed, with damages and costs to the defendant in error. The other judges concurred. Judgment aeeirmed.