In the present case, it must be presumed that the plaintiff received value for the note when he passed it to Dunlap, and it does not appear that he has ever been obliged to refund.

It does not

Swann, E. f. Lee, and Simms, contra. appear that the note was not returned. But this court, in the case of Clarke & Young, ante, vol. 1. p. 181. had decided that it is not necessary, in such a case, to return it. So in the case of Puckford v. Maxwell, 6 T. R. 53. the court said, that "in cases of this kind, if the bill, which is given in payment, do not turn out to be productive, it is not that which it purports to be, and which the party receiving it expects it to be, and, therefore, he may consider it as a nullity, and act as if no such bill had been given at all." The same point is *also decided in 1 Esp. Rep. 5. and 7 T. R. 64. Owenson v. Morse.

The question of negligence does not arise in this case. The reason of the admission in the case of Kearslake v. Morgan, that if the note was outstanding, the plaintiff could not recover upon the original cause of action, is, that the defendant would be liable to be sued upon it. The words are, "if he may be sued upon it by a third person." But here the record itself shows that Harris could not be sued upon it by a third person, being only liable to the present plaintiff, who was his immediate endorsee, that point having been decided in the court of appeals in Virginia, upon this very As, therefore, Harris is liable upon the note to the present plaintiff only, and as he will not be liable to him on the note, in case he recovers in the present action, it is the same thing as if the note had been taken up by the plaintiff, and ready to be delivered to the defendant.

note.

Jones, in reply, admitted, that modern decisions have laid down the law broadly, that if the note or bill is not honoured, it is of no avail; but it is otherwise, if the note or bill be negotiated; it is then a payment until returned.

In the case of Young & Clarke, the plaintiff had not negotiated the bill, and the parties answerable to Clarke were insolvent.

Harris

V.

Johnston.

* 316

Harris

V.

Johnston.

*317

The liability of the defendant to a suit by a third person, on the note, is not the only ground of the opinion in Kearslake v. Morgan. Another ground is, that the defendant may have the benefit of the note against the parties answerable to him.

But, if the present defendant is not liable to be sued on the note in the name of a third person, yet Dunlap may sue him upon it, in the name of Johnston. (a)

*February 19.

MARSHALL, Ch. J. delivered the opinion of the

court.

This case comes up on two exceptions taken to opinions given in the circuit court.

The plaintiff in the court below had sold to the defendant in that court, certain goods, wares and merchandise, of which he had given him a bill, headed with the words, "Mr. Theophilus Harris, bought of Dunlap & Johnston," &c. At the foot of this bill of parcels was the following receipt: "Received Messrs. Clingman & Magaw's note for the above sum, payable to the order of John Towers or order, endorsed by John Towers and Theophilus Harris, payable 2d April, 1798, when paid, received in full."

This note was endorsed in blank by the defendant in error, and a suit was instituted upon it by Dunlap against Harris, in which suit he ultimately failed, it being the law of Virginia, that on a note an action by the endorsee can only be maintained against the drawer, or his immediate endorsor.

The defendant below objected,

1st. That the bill of parcels was conclusive evidence of joint property in the goods sold and delivered, and, therefore, that the action was not maintainable in the name of Johnston alone.

(a) MARSHALL, Ch. J. Not if Johnston recovers in the present suit. Jones. But if Dunlap has a right to the note, he may sue in equity, and payment by Harris to Johnston would not be a bar.

MARSHALL, Ch. J. True. We shall consider that point. I have always been of opinion, that in such cases a suit in chancery can be support. ed; though I do not recollect any case in which the point has been de

cided.

2d. That no action was maintainable on the original contract, the plaintiff below having endorsed the note mentioned in the receipt, and not having reacquired any property in it, so as to be able to restore it to Harris.

No laches are imputed, or are imputable, to the holder of the note.

*Both these points were decided against the defendant below, and a judgment was rendered against him, from which he has appealed to this court.

On the first point the court is of opinion that there is no error. The written memorandum was not the contract, and was only given to show to what object the receipt at its foot applied. It is not, therefore, a bar to a disclosure of the real fact; it is not conclusive evidence of joint ownership in the property sold, and of a joint sale, but will admit of explanation. The court, therefore, did not err in allowing explanatory evidence to go to the jury, nor in allowing the jury to judge of the weight of that evidence.

On the 2d exception, the material point to be decided is, whether an action can be maintained, on an original contract for goods sold and delivered, by a person who has received a note as a conditional payment, and has passed away that note.

Upon principle, it would appear that such an action could not be maintained. The endorsement of the note passes the property in it to another, and is evidence that it was sold for a valuable consideration.

If, after such endorsement, the seller of the goods could maintain an action on the original contract, he would receive double satisfaction.

The case cited from 5 Term Reports appears to be precisely in point. The distinction taken by the counsel for the appellee, that in this case Harris can never be sued on the note is not so substantial as it is ingenious. Harris has a right to the note, in order to have his recourse against his endorsee, and Johnston has not a right to obtain satisfaction for the goods from Harris, while he is in possession of the satisfaction received from Dunlap. In the case quoted from Durnford & East, the liability of the defendant to an action from the actual holder of the note, is not the sole ground on which a disability to sue on the original contract was placed.

Harris

V.

Johnston.

*318

V.

Harris That disability was also occasioned by the obvious inJohnston. justice of allowing to the same person a double satisfaction, and of withholding from the debtor, who had paid for the note before he could endorse it, and who would be compelled, by the judgment, to pay for the goods, on account of which he had parted with it, the right of resorting to his endorsor. But, if it was indispensable to show that Dunlap has a remedy against Harris, it is supposed that the holder of a note may incontestably sue a remote endorsor in chancery, and compel payment of it.

The case of Young & Clarke, decided in this court, does not apply, because, in that case, the plaintiff below had not parted with his property in the note.

The court does not think that the order (made after the judgment was rendered) for the rendition of the note to the defendant below, can correct the error committed in misdirecting the jury.

The judgment is to be reversed, for error in directing the jury that the action was maintainable on the original contract, after the note received as conditional payment had been endorsed.

An executor

cannot main

on letters tes

DIXON'S EXECUTORS v. RAMSAY'S EX

ECUTORS.

ERROR to the circuit court of the district of Cotain a suit in lumbia, upon a judgment in favour of the defendants, the district of upon a general demurrer to their plea, which (after oyer Columbia, up- of the plaintiffs' letters testamentary) stated, that the tamentary, defendants' testator, at the time of making the promises, granted in a &c. and from thence, always, until his death, resided in foreign counthe town of Alexandria, in the county of Alexandria, All rights to in the district of Columbia, and that the defendants personal prohave always resided in the same town, and that the perty are to plaintiffs have not obtained probat of the said letters be regulated by the laws of

try.

the testator's

the country where he lived; but suits for those rights must be governed by the laws of that country in which the tribunal is placed.

*testamentary, at any place within the district of Colum- Dixon's Exbia, or the United States of America.

E. J. Lee, for the plaintiffs in error. The question is, whether the plaintiffs must take out letters testamentary in the district of Columbia, before they can maintain an action as executors.

There is nothing in the laws of Virginia, which requires that letters testamentary should be there taken out upon a foreign will, provided they have been taken out in the country where the testator lived and died. The 14th section of the act of Virginia, P. P. 162. relates only to the title to lands under a will.

If, then, there is nothing required by the laws of Virginia, the right, and the powers of the executors, depend upon the rules of the civil law, and the law of that country of which the testator was a subject.

By the law of England, an executor may commence suit before the probat. 1 Com. Dig. 2B ac. Abr. 413. The very naming of an executor is a disposition to him of all the testator's personal estate, for he comes in loco testatoris, and is entitled to the surplus, after payment of debts and legacies. 2 Bac. Abr. 423. He derives all his power, not, like an administrator, from the government of the country, but from the will of his

testator.

The debts due to the estate follow the person of the creditor, not that of the debtor, and the disposition of them is to be governed by the laws of that country of which the testator was a subject. 2 Bos. & Pull. 229, 230. Bruce v. Bruce. 3 Vez. jun. 200. Bempde v. Johnston. Appendix to Cooper's Bankrupt Law, 29. Babille's Opinion. Vat. b. 2. c. 3. s. 8. 109, 110, 111. 3 Dall. 370. 377. (note.) 4 T. R. 184. 175. Hunter v. Potts.

The case of Fenwick v. Sears, ante, vol. 1. p. 259. was that of an administrator who derives his whole authority from the laws of the place; it therefore cannot decide the present case, which is that of an executor who derives his whole authority from the will of his *testator. That case, too, was decided under the peculiar laws of Maryland, which differ from those of Virginia upon this subject. By the law of Maryland, 1798, c. 101. s. 4. no alien can be an executor or administrator.

ecutors V.

Ramsay's Ex

ecutors.

* 321