dissenting. The facts in this case, in my judgment, do not entitle the plaintiff to a recovery. The simple question is, whether a person having money in his hands, belonging to another, is liable to a suit by a third person, to whom the person entitled to the money shall direct it to be paid, without any promise or agreement to pay the money to such third person. I have not been able to find a case, unless it be that of M‘Kim v. Smith, in the Baltimore county court, tried before Nicholson, Ch. J. (1 Hall's Law Journal, 486.) which will warrant a recovery in this, ease. In Crifford v. Berry, (11 Mod. 241.) wages being due to A. from the East-India Company, he ordered B. to receive ihe money and to pay it to C, to whom he was indebted; C, brought indebitatus assumpsit against B. Holt, Ch. J., held, that the action could not be maintained by C. This case is very briefly reported, but there can be no doubt that B. had received the money, and that when he was authorized to receive it, he received the direction to pay it to C. In Surtees and others v. Hubbard, (4 Esp. Rep. 203.) an action for money had and received was brought by the plaintiffs, as assignees of a ship, to recover the amount of freight; notice had been given of the assignment of the ship and freight to them; the objection was taken that it being a chose in action, the demand could not be assigned, so as to enable the assignee to bring a suit in his own name ; Lord Ellenborough nonsuited the plaintiff, saying, that where a party, entitled to money, assigns over his interest to another, the mere act of assignment does not entitle the assignee to maintain an action for it; the debtor-may refuse his assent; he may have an account against the assignor, and wish to have his set off; but if there be any thing like an assent on the part of the holder of the money, in that case, this,-which is an equitable action, is maintainable.
*283In Fenner v. Meares, (2 Black. Rep. 1268.) the defendant had e ^ , . J 1 borrowed money of Cox on respondentia, and by an endorse* ment on the bonds, stipulated, in the most, express terms, that if they were assigned, he held himself bound to pay the assignee, without any deduction or abatement, and on .the return of the ship, and application by the assignee,, the defendant desired time, and begged. the assignee would not sue him. Two of the judges, Ch. J. De Grey, and Nares, J., held, that the plaintiff was entitled to recover, without reference to the promise afterwards, on the ground, that these bonds were essentially necessary to carry on the India trade, and that it would clog them, and be productive of inconvenience, if they were obliged to remain in the hands of the first obligee ;. and that the contract was devised to operate on subsequent assignments, aná .amounted to a declaration, that the money which had been borrowed, should, on assignment, be no longer the money of A, but of B., his substitute. Blackstone, J., avoided giving any decisive opinion on that point, but put the case.on the subsequent promise.
This case may, at first view, be supposed to favour the plaintiff’s right to maintain this suit; but I think it very different from the present case. The stipulation to pay to any assignee wa,s as explicit as language could make it; and, besides, it related to a trade which policy required should be protected and encouraged ; but this case met with discountenance from Lord Kenyon, in Johnson v. Collings. (1 East, 104.) He declared he could not agree to that case, and he supposes that the result was, that the determination of the jury having been made according to equity and good conscience, the court would not disturb the verdict. All the court, however, held, that a promise by a debtor to his creditor to accept a bill and pay it, was not an acceptance of a bill not then in esse. The plaintiff in that case, was the endorser of the bill drawn on a promise by the debtor to accept it, and had added the money counts ; and, with respect-to those counts, Lord Kenyon added, “ If we were to suffer the plaintiff to recover on the general counts, we must say, that a chose in action is assignabje, a doctrine to which I never will subscribe.” Grose, L, declared it would be of most dangerous consequence to relax the rule of law, to the extent contended for, and that to permit the plaintiff to recover, would be making all choses in action assignable.
The case of Israel v. Douglass and another, (1 H. Bl. 239.) *284was decided oil the ground that the debt; with' thé CdnSehE of the parties, ivas assigned to: the plaintiff; and Gould, J., put on the true footing. He says, “ If I pay money to you for atiOther person, it is money had and received by you 'to hís usé ; 'but where is thé "real áhd 'substatitial difference; Whether f in fact pay money to you for, ¿ third person,-dr whether I give you an order to pay so itiubh tidoney, -to Which you expressly assent.”, ' - ; 1 ■' ■ ■ ■ .
Most of these cases carné under the consideration of this court, in M'Evers v. Mason, (10 Johns. Rep. 213.) Oh. J. Kent, in delivering the opinion of the court, states the base a& laid dpwtt by Beanies, with approbation ; that thé party mkldng a promise to accept a bill to be drawn, is answerable in daznages to the person to Whom the promise is made ; and he adds, ■"“ but such a promise is not assignable; and it seeitis á little difficult to Understand how the endorser of:a bill, subsequently drawn, can charge the drawer with acceptance, 'by virtue of such a preceding promise, which is'not of itsélf assignable, and iS, strictly, no part Of the negotiable cdfatfactand he adds, he “ had met with no adjudged cáse, except it be that óf M‘Kim & Smith, in which it had been decided#-that an endorser can avail himself of such a previous promise# as amounting to áñ ábeepE-nncé under the law merchant, of á bill not then drawn.” The case of M‘Kim & Smith is the tipimdn of á single j üdgé, pro*? hounbéd at the trial of the cause; and; pérhaps, the trick atteznpted to be pzuctised by the defendants cm the other creditors oí Brown, líád an insensible influence on the judge.
Great stress was laid upon the defendant’s, agreement to hold the" moneys he should receive on thé policies;, subject to the or; der of Bowen & Robins ; this amozznted to Uo znore than ati agreement to hold hiuiself responsible for what should be recéived; but, at all events, it was no moré than an agreement With Bowen & Robins, to accept and pay their order; an agreement with which the plaintiff has nó concern. In the present case, the plaintiff gave no new credit to Bowen & Robins in cbnséquence of the defendant’s agreement to hold thé balance that might be recovered on the policies, beyond the specific appropriations, subject to the order of Bowen & Robins, j I believe what was stated by Mr. Gorman, one of the special jury, oh the trial of Pierson v. Dunlop, (Cowp. 572.) is true, that it is k *285universal rule among merchants, that a mere engagement to the, drawer of a bill is no engagement to the holder of it.
The injustice of the principle contended for by the plaintiff is very manifest in this case, and it is one of the reasons assigned by Lord Ellenborough against such an action. The defend■ant holds Bowen & Robins's note, for two thousand three hundred dollars, for goods sold to them two months- before the assignment of the policies, and by stistaining this suit he will be deprived of his set-off.
On the ground, then, that the debt due from the defendant to Bomen & Robins for the balance is npt assignable, so as to enable the assignee to sue for it in his own name; that the plaintiff has not given to Bowen & Robins any new credit, on the faith of the defendant’s agreement with them, and that the defendant has had no Communication with, or made any promise to, the plaintiff I am decidedly of opinion, that the action is not sustainable, and that the defendant ought to have judgment.
Platt, J.,"not having heard the argument of the cause, gave no opinion.
Judgment for the plaintiff