By the Court,
Sebastian, J.The main question arising upon the record, is, whether such an instrument as that sued on, is assignable by virtue of the-statute of this State. Rev. Code, p. 107, sec. 1 and 2, which provide “that all bonds, bills, notes, agreements and contracts in writing, for the payment of money or property, or both money and property, shall be assignable.” And, “the assignee of anjr such instrument as is specified in this act may sue for the same in his own name as assignee thereof, in the same manner that the original obligee or payee might or could do.” Such an instrument as this was not assignable at common law. Bills of exchange derived their negotiable quality from the usages and well established principles of the mercantile law. The negotiability of bills of exchange were confined to such instruments in that form as were drawn for the direct payment of money; and such is the definition of the term under our statute, p. 151, sec. 13, Rev. Stat. By the common law, therefore, this is not a bill of exchange. Ch. on Bills, 152. Rex vs. Wilson, Baily 11. Jones vs. Fales, 4 Mass. 245. Leiber vs. Goodrich, 5 Cowen, 186. McCormick vs. Trotter, 10 Serg. & Rawle 94. Lunge vs. Kohm, 1 M. C. 115; and 3 Ark. Rep. 73, Gwinn vs. Roberts. And, although bank notes are for- many purposes equivalent to money, yet a bill or note for the payment of them is not deemed a bill of exchange at common law, or a promissory note within the 3 and 4 Ann, ch. 9, and consequently not assignable. Many peculiar and legal qualities belonged to such instruments, which distinguished them from choses in action. They were assignable by endorsement so as to transfer the legal title and property in them, and enable the endorsee to sue upon them in his own name. From their commercial character they imported a consideration, 2 Bl. Com., and they raised against the parties to them a legal liability, and were sued on as the foundation of an action. These qualities do not belong to the instrument here sued on, unless it is aided by the statute upon assignments before referred to. Without intending to give any interpretation of the statute as to the classes of contracts to which it extends, we think it does not embrace any instrument in the form of a bill of exchange for any species of property, such as the instrument in this case evidently is. The legal operation of the statute was only to make the contracts and instruments in writing embraced in its provisions assignable, and thereby transfer the legal title and right ef action to the assignee, to the same extent as they subsisted in the original obligee or payee. Its effect was merely to substitute the assignee in the rights of the assignor. It was not intended to- give a right of action in the hands of the assignee where none existed before, and where no right of action pertained to the assignor lie could transfer none to the assignee. A note for property would be assignable, because the payee has a right of action on the privity of contract; but could the payee of this bill have sued Hawkins on his acceptance in this form of action? We think not. The liability of an acceptor is one raised by law applicable to mercantile instruments, and he was never liable as suck, except upon those instruments. No right of action lay in favor of any party against an acceptor, upon the bill itself, in any other case: and, inasmuch as the statute did not intend to give a right to the original payee, where none in this form subsisted before, it is clear that by the endorsement the assignee acquired no new or better right. We are, therefore, clear, that the instrument in question was never assignable as a bill of exchange at common law, nor embraced within the provisions of our statute. We do not express any opinion whether the bill here sued on could be made available in any other form of action as evidence, but confine our remarks alone to the sufficiency of it as the basis of an action, or as creating any legal liability against the parlies to it. Judgment reversed.
Watkins filed a petition for reconsideration, which at July term was overruled.