
    * Nicholas Van Staphorst and Another versus David Pearce.
    Upon an express promise to pay the factor of any one, for the use of the principal, the factor may maintain an action in his own name.
    Where the debtor of A has made an express promise to pay the debt to A’s factor, the debtor cannot be held as the trustee of A in a foreign attachment.
    The declaration in this action was in case upon sundry promises, and contained the following counts: 1. Assumpsit for money had and received. 2. On a bill of exchange, as drawn by Samuel Colder on the defendant, and payable to bearer, with an averment that the plaintiffs are the bearers, of the acceptance of the defendant, &c. 3. On a bill of exchange, as drawn by Blandow and Company on the defendant, payable to the plaintiffs, and accepted by the defendant. 4. On a bill of exchange, as drawn by Samuel Calder on the defendant, payable to the plaintiffs, and accepted by the defendant.
    At the last November term in this county, the parties submitt/ l the cause to the opinion of the Court, upon an agreed statement, of facts, from which it appears that on the 19th of June, 1803, one Samuel Calder, who was master of the ship Martha Washington, then at St. Petersburg, of which ship the defendant was owner, drew a set of bills of exchange on the defendant, as follows, viz. —
    “ Bill of exchange for Ro: 25,000.
    “ St. Petersburg, 19 June, 1803.
    “ Six months after date, you will pay, for this, my second bill of exchange, the balance of the cargo I have received from Messrs. Blandow if Co., for your account, on board the Martha Washington, according to your letter addressed to me in date of March 16, of this year, the sum of twenty-five thousand rubles, payable a.t Amsterdam, at Messrs. Van Staphorst if Co.
    
    
      “ Signed, Samuel Calder.
    
    
      “ To Mr. David Pearce, Gloucester.”
    
    On the 23d of June, 1803, Messrs. Blandow Co. endorsed the said bills to the plaintiffs, who are the persons named therein, as follows: —
    “ Pay to the order of Messrs. Van Staphorst if Co. value in ac count. St. Petersburg, June 23, 1803.
    “ Signed, Blandow If Co.”
    
    * On the 8th of August, 1803, the plaintiffs, being [*259] holders of said bills so endorsed, sent one of the set to the defendant, enclosed in a letter, in which they request his acceptance thereof; to which the defendant replied by letter of Nov. 28, 1803, saying, “ The bills you hold in favor of Messrs. Blandow if Co. for the Martha Washington’s cargo, I am determined to discharge, by a shipment to you as early as possible in the spring. — The above-mentioned method of meeting these bills I hope will be agreeable.”
    March 16, 1803. The defendant wrote to Calder a letter, in which he instructs him what articles he is to obtain for his homeward cargo, and adds, “ What money you may want, you can draw for, which will be duly announced.”
    
    January 6, 1804. The plaintiffs wrote the defendant, acknowledging the receipt of a sum of money from Messrs. Damen if Van Olivier, in part payment, and urge a provision to be made for the balance of the bills remaining due.
    January 26, 1805. They acknowledge the receipt of a further sum, and add, “ The balance on the same, due to Messrs. Blandow if Co., and interest since the time this object ought to have been paid, we are requested by Messrs. Blandow Of Co. to claim from you, as they want to have settled this account.”
    Messrs. Blandow If Co. failed at St. Petersburg, and the defendant was summoned as their trustee in two several actions, in which they were defaulted, before the commencement of this action.
    And if, upon the facts stated, the Court should be of opinion that plaintiffs are entitled to recover in this action, the defendant agreed to be defaulted; otherwise the plaintiffs were to become nonsuit.
    And now, at this term, the cause was argued by Otis and Channing for the plaintiffs, and Prescott and Jackson for the defendant.
    
      Channing
    
    contended that this was a bill of exchange. Where the intention was to make a bill of exchange, that intention gives the character to the instrument. It is not even necessary, to constitute a bill of exchange, that any payee be named, for [ * 260 ] in that case it shall be held payable to him of whom * the value was received.  The words “or order” are not necessary, nor is it essential to the character of this species of instrument, that it should be transferable from one person to another. 
    
    This bill may then be considered, in the first place, as a bill payable to bearer or to Blandow Sf Co. and bearer. In support of this position may be cited the English cases of bills payable to fic titious payees. 
    
    If, secondly, this be considered as a bill drawn by Blandow fy Co. in favor of the plaintiffs, there can be no doubt of the responsibility of the defendant, upon his acceptance.  It is not necessary that the whole of a bill be on the same side of the paper on which it is written. If, on the whole, there was a valuable consideration paid, and an intention to create a bill of exchange, it will be construed as such, if possible. The paper, in this case, comes precisely within Chitty’s definition of a bill of exchange. In Heylin vs. Adamson, it is said by Lord Mansfield, that every endorsement creates a new bill of exchange. And in the case of Gibson 8f Al. vs. Minot 8f Al. in error, 
       Lord C. B. Eyer, who differed from the other judges as to the plaintiffs’ right to recover in that action, agrees that if they had declared upon a bill drawn by the endorsers, payable to the plaintiffs, or their order, they might have recovered.
    
      Channing
    
    went on to support this instrument as a bill drawn by ('alder on Pearce, payable to the plaintiffs, and as drawn by Calde* 
      on Pearce, payable to Blandow &f Co. or bearer; but as the Court confined their opinion to the third count, it is considered as unnecessary to recite the arguments used.
    As evidence of the defendant’s acceptance, Channing relied on his previous orders to Colder to draw on him, on his subsequent letters to the plaintiffs, undertaking to take up the bill, and on the partial payments, which the case finds to have been made.
    * The words “ value in account,” used in the endorse- [ * 261 J ment of this bill, show the property in the plaintiffs. But whether the holder of the bill paid a consideration or not, is immaterial, unless third persons are injured. 
    
    
      Jackson
    
    said the cause had appeared to him to lie in a very narrow compass. He contended that this paper was not, in its original form, a negotiable instrument. It was no more than a certificate from Calder, the agent of the defendant, showing the amount due from the latter to Blandow fy Co. No bill is negotiable unless originally containing words empowering the proprietor to assign it. The cases respecting bills payable to fictitious payees, and determining them payable to bearer, arose out of the necessity of the thing. But no such necessity arises in this case. Nor will any equitable claims be infringed by a decision against the plaintiffs, in this action, it being very plain, from the facts, that the real parties in interest are Blandow fy Co., and that the plaintiffs are merely agents or servants of theirs.
    Taking it for granted that this bill, as it is called, is not negotiable, upon the face of it, can the plaintiffs recover upon the facts disclosed in this case ? To answer this question, it is not necessary to recur to ancient principles respecting the assignment of choses in action. The most liberal decisions of modern times require evidence of an adequate consideration for the assignment.  But nothing of that appears here. So to make an assignment valid, so far as to enable the assignee to maintain the action in his own name, there must be notice to the debtor, and his assent. But there is nothing in the case, which shows notice to Pearce of a transfer of this debt, or an assent on his part to hold the present plaintiffs as his creditors. He considered himself the debtor of Blandow &f Co., and the plaintiffs uniformly treat the business in that light, in their letters to him. These letters were the only notice to the defendant, and they do not once suggest any interest in the plaintiffs; so that no assent of the defendant, or implied promise to pay them for their own use, can be presumed.
    * It is indeed immaterial to the defendant to whom he [ * 262 ] pays a balance which he does not dispute. Nor does he question the authority of the plaintiffs to receive this money, and to give him a good discharge as against Blandow if Co., their principals. The defence in this action is substantially made in behalf of those creditors of Blandow if Co. who have summoned the defendant as thpir trustee, and who must lose their debts, unless they can save them out of this fund.
    
      Prescott
    
    enforced the observations made by Jackson, and urged particularly that this paper was not originally assignable, and if it was, that it had never been assigned. The cases cited for the plaintiffs were all of notes originally made negotiable, or, from the necessity of the thing, so construed by the Court, as in the case of the fictitious payees.
    
      Otis
    
    would have replied for the plaintiffs, but was stopped by the Court, whose opinion was afterwards delivered as follows bv
    
      
      
        Chitty on Bills, 46. — Pothier, 24.
    
    
      
      
        Chitty, 48. — Pothier, 200, 206
    
    
      
      
        Vere vs. Lewis, 3 Term Rep. 182. — Minet & Al. vs. Gibson Al., 3 Term Rep 481. —1 H. Black. 569, S. C.— Collis vs. Emett, 1 H. Block. 313.
    
    
      
      
         Kyd on Exchange, 13. — Chitty, 13. — Heylin vs. Adamson, 2 Burr. 674.
    
    
      
       1 H. Black. 609.
    
    
      
      
        Chitty, 50, 51 —1 Esp. Rep. 261. — 3 Cranch, 193
    
    
      
       1 Mass. Rep. 117
    
   Parsons, C. J.

It appears from the case as stated, that on the 19th of June, 1803, Calder, a master of the defendant’s ship Martha Washington, was with the ship at St. Petersburg, and there purchased of Blandow & Co. a cargo for his owner, agreeably to whose orders to pay the balance due to Blandow & Co., he drew a bill for 25,000 rubles on the defendant, payable in six months at Amsterdam,, at the plaintiffs’, without mentioning the name of any payee. This bill was delivered to Blandow & Co., who, on the 23d of June, sent the bill to the plaintiffs, with an endorsement, di reefing the defendant to pay the contents to the order of the plain tiffs, value in account. The plaintiffs, at the request of Blandou & Co., sent the bill to the defendant, who accepted it; and it not having been paid, the plaintiffs have brought this action, in which they have declared in several different ways, that these facts might support some one of the counts.

The third count states the contract as a bill drawn by Blandow & Co. on Pearce, in favor of the plaintiffs, and accepted. And we are all satisfied that the plaintiffs may recover on this count; because every endorsement of a bill may be considered as a new bill drawn by the endorser on the acceptor in favor of the payee.

[ * 263 ] * The defendant’s counsel have not contested the truth of this position as generally true; but they argue that this case must be considered as an exception for two reasons.

1. Because, from the letters of the plaintiffs, it appears that they hold the bill on account of the endorsers, and therefore the action shou.d have been sued in their names. This reason does not appear to have much force; for upon an express promise to pay to the factor of any one for the use of the principal, the factor may maintain an action in his own name; and as the endorsement expresses value in account, if the endorsee holds it for the use of the endorser, he is his factor, as to this bill. If Pearce had, after his acceptance, paid the bill to the principal, he might be allowed to avail himself of such payment against the factor.

2. The second reason is, that the creditors of Blandow & Co have sued Pearce as their trustee, and therefore the money due on the bill is attached in his hands. This reason cannot prevail, for in this action we cannot consider the rights of any persons, who are not parties to the bill. And admitting that Blandow & Co. might have given notice to Pearce not to pay the bill to their factors, the plaintiffs, yet the creditors of Blandow & Co. have no authority to discharge Pearce from his express promise made to the factors of their debtors.

Let the defendant be defaulted, and let the plaintiffs enter their judgment on the third count for the sum agreed to be due on the bill.  