Hamilton v. McDonald

Cope, J. delivered the opinion of the Court Field, C. J. concurring.

This is an action upon a nonnegotiable promissory note. The note was assigned by McDonald, the payee, to one Bower, who assigned it to the plaintiff. The action is against the maker, and McDonald and Bower, assignors. McDonald was the only party served with process, and the defense is by him alone.

It is contended that as against McDonald the action cannot be maintained for want of privity. The answer to this objection is to be found in the provisions of the statute regulating the rights and [130]liabilities of the parties. The fourth section of the Act of April, 1850, relative to bonds, due bills, etc., makes every assignor of a nonnegotiable note liable upon his assignment to the assignee of such note, and it is evident from the language used that it was not the intention to limit this liability to his immediate assignee. The rule at common law was, that as between the assignor and his imme’diate assignee, the assignment created the same liabilities and obligations on the part of the assignor as the indorsement of a negotiable note created on the part of the indorser. But in respect to subsequent holders, no privity or connection existed between them and the assignor, unless expressly created by the assignment, and where this was not done the immediate assignee was the only person who could maintain-an action in his own name against the assignor. The statute places the subsequent holder upon the same footing with the original assignee, and gives him a right of action against every person from whom the instrument has passed by assignment.

The other questions in the case are unimportant. The case of Lowe v. Alexander (15 Cal. 296) does not sustain the position of the appellant upon the question of jurisdiction. The objection is based upon a motion made previous to the filing of the answer to dismiss the action, but this motion, we think, was properly denied. The ground of the motion was that it did not appear from the record that the justice had acquired jurisdiction of the person of the defendant, but it would have been improper to set aside the whole proceedings upon that ground. If the facts were such that the record could not have been amended, a showing to that effect would have entitled the defendant to a dismissal, but it is obvious that he could not come forward and defeat the whole case in limine upon the insufficiencies of the record.

We cannot perceive in the objections which are urged to the complaint any cause for reversal. The note with the indorsements thereon constituted a sufficient foundation for the commencement of the suit, and the pleadings in the case were oral. We cannot interfere without violating the principle upon which we have always acted in such cases. ,