
    Lane, Son & Fraser, against Winthrop, Todd & Winthrop.
    
      September 1, 1790.
    
      Jt. makes an agreement to deliver riee assigns °-1 Ik aitenvards, by ment on the hack ot such agreement,^ rk'a to he de-which1 is ac-shined by ^A. Tins shall cmtle a new contract he-tween A. and C. so as to preclude any discount or equity being gone into, between A. and Ji. the origi-iial contract-in, pames.
    THIS was an action on the case, brought on the follow . . -, , r , . mg- note against the defendants, as copartners, upon their acceptance. The note was “ For value received, Boston, « 21st October, 1785,1 promise, in behalf of Winthrop, Todd « £c? Winthrop, merchants of Charleston, South-Carolina, J 7 7 “ to ship on account of Nathaniel Tracey, Esq. or his as- “ signs, a thousand tierces of rice, in all the month of Dc~ “ cember, or so soon as the new rice comes to market, in “ any vessel or vessels he or they may direct; the same to « |Je addresse.d to Messrs. Lane, Son &? Fraser, in Lon- ’ ’ u doll*
    
    (Signed) “ Thos. L. Winthrop.”
    
      (Indorsed thus)
    Deliver the within mentioned rice to Messrs. Lane, 7
    “ Son &? Fraser, or order.
    NATH. TRACEY,
    And accepted thus. “ Accepted to deliver the within as ci above, in behalf of Winthrop, Todd £s? Winthrop.
    
    “ Thos. L. Winthrop.”
    This last acceptance was made after the indorsement by Tracey. The declaration stated the circumstances ; and the above note, with its indorsement and acceptance, was given in evidence to support it.
    
      Rutledge and Pringle, for the plaintiffs.
    
      Pinckney and Bay, for the defendants.
    
      Bay objected to this note and indorsement being given iu evidence, in favour of the plaintiffs, as he said they could not maintain any action thereon. He moreover stated, that the defendants had a discount against Tracey, to the whole value of the rice, which they would be precluded from, reCovering, (as Tracey had lately failed,) unless they were permitted to offer it in discount against this demand. He then urged that this was not such a negotiable paper, as would enable the plaintiffs to maintain an action, in their own right j because it. is not for payment of money. It is not under the statute which makes promissory notes negotiable. It depends on common law assignment.
    
      Pringle, for plaintiffs,
    did not proceed on an implied as-sumpsit, by virtue of the assignment; but on the express undertaking of the defendants in writing, upon the back of the note, after the assignment was made. For it was after the assignment to the plaintiffs, that the defendants wrote on the back of the paper, that they would deliver the rice to the plaintiffs, agreeably to the indorsed order. The action does not depend upon the supposed negotiability of the paper, which might raise an implied assumpsit in law ; but on the express assumpsit made by the defendants themselves.
    
      Bay replied,
    and said the question then was, whether the acc.cp-.ance on the back at all altered the case ? He contended, that, a note or debt, not negotiable, cannot be made so by consent of parties, and cited to tins effect, a case from V'm» Abr. (tit. Assignment,) that they had not shewn any consideration moving from themselves. The indorsement does not express for value received.
    
      Rutledge,, for plaintiffs.
    The court, in commercial questions, look for the intentions of parties. It is here evident that Tracey meant to assign over the absolute property in this rice to Lane, Son & Fraser; aa&ihtxtV/inthrop, Todd ST Winthrop so accepted it, to Lane, Son £T Fraser ; or why order the defendants to deliver it? Why was the second engagement entered into, if such was not the intention ? A second acceptance is a new undertaking. The tenor of the first engagement to deliver to Tracey, u or his assigns,55 is pursued, and afterward accepted of. This is not s. nudum pactum» No contract in writing is such,
    
      Pinckney said, that this was a nudum pactum. That tin plaintiffs are the agents of Mr. Tracey» There is no '-or sideration expressed; which would have been the case, if ie had been the intention of the pax-ties to create a new con-* tract. Tracey could assign no more than his interest, subject to all the original equity of the other party, which equity they are precluded from, by the nature of the action, in the name of the plaintiffs..
   Waties, J.

overruled the exceptions The question is, whether the light on which this action is brought, is an as* signed light, or an original right. If the former, this action cannot be maintained. If the latter, it is regularly brought 5 for, in such a case, it is a new contract; and I think the latter is evident from the transaction. The only case which contradicts it, is one cited from Finer; which, in my opinion, is neither good law or good sense.- A man-may surely make what contract he pleases ; and the defendants agreed to waive their equity (if any they had) in the original, by entering into.a new contract. This they surely had a fight to do, and must now be bound by it. The case of Bay and Frazer is very strong. It did not decide between the obligor and obligee, but between the assignor and assignee. This, therefore, being an original right, and not-an assigned one, no equity between the original parties cas be set up against the present plaintiffs’ claim.-

The jury found for the plaintiffs--  