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But the progress of society and of commerce, is the latter was not a herald of the former, and the consequent new wants of the community, called into existence a new system of law, which was administered in new courts, and of course, in its adaptation to the real state of things, bore the imprint of its later origin. The administration of justice by the ordinary courts, says Lord Redesdale, (Pleadings, 4,) appears in the early history of English jurisprudence to have been incomplete, and to supply the defect courts of equity were established. In these courts the rights of the assignee were distinctly recognized, and he was allowed to sue in his own name. (4 Petersdorff's Abr. 630.)
It is thus, by the English law, by which is meant the common law, and that law technically called equity, and by our law so defined, the assignee of a chose in action may sue in his own name. Our law, unlike that of other countries and especially of Scotland, is divided into two great divisions, (to say nothing of the ecclesiastical and admiralty law, the first of which indeed, we have not,) passing under different names and treating of different subjects, matters and rights. One of these divisions bears the generic name, law, and the other, the deceptive name equity, as if the law was not equity and equity was not law. This is not the occasion for a discussion of the many errors caused by this ambiguity of language. Sir J. Mackintosh's chapter, in his work on Ethical Philosophy, on the imperfection of language and the misconception thence arising could not have been better illustrated than by this striking instance. A curious sentence of Sir Thomas Browne points out some of the difficulties springing from this source, and is quoted at the risk of introducing something but little germaine to the present subject. The people' says this strange and powerful writer, in his Vulgar Errors, are commonly confined unto the literal sense of the text, from whence have ensued the gross and duller sort of heresies. For not attaining the deuteroscopy and second intention of the words, they are fain to omit their super-consequences, coherences, figures or tropologies; and are not sometime persuaded by fire, beyond their literalities.
The present question, I cannot but think, has been perplexed by the confusion arising from the above two-fold division. In Scotland, all courts are courts of equity as well as courts of
law, and this has been particularly declared of the common Scotch Courts of Sessions by Lord Chancellor Brougham. (Montgomery v. Bridge, 2 Dow & Clark, 300.) So it might be difficult, were one disposed to such refinement, to determine whether the assignee of the present bond could sue in his own name, in his native courts, except by virtue of those principles, with us technically called equity, which have been incorporated into the Scotch jurisprudence.
The conclusion is, that the assignee has, in our courts of equity, the remedy which he has in Scotland, to wit, by action on the bond in his own name, and also the remedy at law by action in the name of the assignor.
DIGEST OF RECENT DECISIONS.
Principal Cases in 6 WENDELL'S and 3 and 4 GILL & JOHNSON'S REPORTS.
ACTION. 1. (Agreement to extend credit on a note.) Where the holder of
a note over-due, for a valid consideration, agrees to extend the time of payment for a limited time, and in violation of such agreement commences a suit on the note before the expiration of the time agreed on, the remedy of the debtor is to set up such agreement by way of defence to the action ; he cannot sustain an action on his part for a violation of the
agreement. Pearl v. Wells, 6 Wend. 291. 2 (Waiver.) A person entitled to the services of another
standing by and permitting a third person to avail himself of such services, without interposing a claim, or giving notice of his right, cannot maintain an action for such services. So held, where a slave was bequeathed by will to a son-inlaw, and a son of the testator who had a bill of sale of the slave, permitted him to labor for the son-in-law without giving
notice of his claim. Demyr v. Souzer, 6 Wend. 436. 3. (Joint Debtors.) Where two are bound for the payment of
a sum, and one pays the whole, he can in Maryland, either at law or in equity, call upon the other to contribute his
proportion. Owens v. Collinson, 3 Gill & Johns. 25. 4. (Devastavit.) An action may be maintained by a creditor of
a testator, against the executer of his executor, suggesting a devastavit by the first executor. Sibley v. Williams, 3 Gill
& Johns. 52. 5. (To enforce a decree in chancery.) No action at law lies to
enforce a decree in chancery within the territorial jurisdic
1 Mr. Wendell's sixth volume was omitted in its proper order.
tion of the court of chancery. That court will enforce its
own decrees. Richardson v. Jones, 3 Gill & Johns. 163. 6. (On a contract not supported by a valuable consideration.) The
courts will not lend themselves to a donee or assignee to enforce an inchoate contract not founded upon a valuable consideration; neither will they lend their aid to a donor or assignor, in the case where the gift or assignment has been consummated by perversion, to recover back what the donee or assignee has received or collected. M Nully v. Cooper,
3 Gill & Johns. 214. See Parties. ACTION OF ACCOUNT. 1. (Against guardian.) An action of account is the only ac
tion that can be brought against guardian qua guardian in a court of law, other than an action on his bond. Green v.
Jackson, 3 Gill & Johns. 389. 2. (Limitation.) Limitations apply to this action, N. ACTS OF ASSEMBLY. 1. (Lotteries.) The act of 1821, ch. 232, in Maryland, was not
designed to prevent the mere sale of lottery tickets, or to impose upon the seller the necessity of obtaining a license therefor. Its prohibitions only extend to the opening, setting up, exercising, or keeping any office or other place, for selling lottery tickets; or registering the numbers, or publishing the setting up, &c. without having first obtained a license for that purpose. Yates and McIntire v. O'Neal and Smith,
3 Gill & Johns. 253. 2. (Lotteries.) A contract between A and B, by which the
latter agreed to become the agent of the former, for the sale of lottery tickets, account for, and remit a certain part of the sales of tickets, return unsold tickets, and bear the expenses of the agency, is not void under the act of 1821. There is nothing in such a contract, upon any principle of construction, applicable to penal statutes, that could warrant a jury in inferring that the agent had agreed to open an office, &c. of the character described in the act; and the court will not presume that A intended to violate that law, by having an office kept without a license. 16. ADVANCEMENT. 1. In an action by S., a distributee of W., against L., his ad
ministrator, upon the administration bond, to recover a dis tributive share of W.'s estate, it appeared that W., on the 22d October, 1810, conveyed sundry tracts of land and negroes to F., in consideration of $1000 paid by F.; and that
for E., him, for life, o
F., by a deed dated a few days after, and reciting the previous deed, and declaring that it was in trust, conveyed the same property to R., in trust for W. for life, then in trust for the wife of W., if she should survive him, for life, or during her widowhood, then in trust for E., A., M., S., and T., daughters of W., as to one moiety of the land for life, and as to the other moiety for B., son of W., and upon the death or marriage of the daughters, then to B., in fee. The negroes were also distributed among the same parties. L., the administrator, was another son. The trust estate was not brought into hotch-pot. Held, that these deeds were to be considered as one instrument, and afford ample proof, that S. was advanced by the intestate in his lifetime. No valuable consideration moved from S., and as respects her, the deeds were voluntary and gratuitous; but that this was no bar at law to this action. State, use of Wilson, v. Jameson, 3 Gill
& Johns. 442. 2. It is not every child that is advanced, the law excludes from
distribution. It is only such as are advanced by a portion equal or superior to a share. To make a full defence at law, under the Maryland act of 1798, ch. 101, sub-ch. 11, sec. 6, the defendant must show to the jury the value of the plaintiff's advanced portion, and that it was equal to his distribu
tive share. Ib. ANNUITY. W. by his last will devised as follows: 'I give and bequeath
to my daughter A. the sum of $60, as an annuity, to be paid to her out of the profits of my real estate annually.' This is an annuity, and not a rent-charge. Robinson v. Townshend,
3 Gill & Johns. 413. APPEAL. 1. (After death of party.) An appeal from a decree of the
chancellor cannot properly be taken, after the death of the only complainant in the cause, in the name of such complainant; and neither the appearance of the representatives of the deceased party, after a suggestion of the death in the appellate court, nor the appearance of the other party there, cures the defect. The court on motion dismissed such an
appeal. Owings v. Owings, 3 Gill & Johns. 1. 2. (Wrong instruction to the jury.) To justify the reversal of a
court's judgment, on the ground of their having given an erroneous instruction to the jury, it must appear that the appellant actually, or probably, did sustain an injury thereby.