14 Cal. 450, Naglee & Parrott v. Lyman
|Citation:||14 Cal. 450|
|Opinion Judge:||FIELD, Judge|
|Party Name:||NAGLEE & PARROTT, Receivers of Page, Bacon & Co. v. LYMAN|
|Attorney:||C. Temple Emmet, for Appellant. Crockett & Crittenden, for Respondents.|
|Judge Panel:||JUDGES: Field, C. J. delivered the opinion of the Court. Cope, J. concurring.|
|Case Date:||October 01, 1859|
|Court:||Supreme Court of California|
Rehearing Granted 14 Cal. 450 at 455.
Appeal from the Fourth District.
To the facts stated in the opinion it is only necessary to add, that the plaintiffs were appointed receivers of Page, Bacon & Co. at the suit of judgment creditors of that firm.
1. The plaintiffs, as receivers of the effects of Page, Bacon & Co. had no authority to institute this suit.
2. The special indorsements on the bill show that the title had passed out of Page, Bacon & Co. and there is no retransfer from the last indorsee to them.
3. Page, Bacon & Co. gave no consideration for the bill. They took it as security for an antecedent debt of Clifford & Co. but without extinguishing the debt, or giving further time on it, or releasing any other security. (Coddington v. Bay, 20 Johns. 637; Bank of St. Albans v. Gilliland, 23 Wend. 311; Wardwell v. Howell , 9 Id. 170; Stalker v. McDonald, 6 Hill, 95.)
Respondents rely upon the decision of Judge Story, in the case of Swift v. Tyson .
An examination of that case will show that Tyson's acceptance was transferred to Swift, not as security for Morton & Keith'sdebt, but in absolute payment and extinguishment of the debt. This was a good consideration for the transfer, and sufficient to support the conclusion arrived at by the Court.
If, in the case at bar, Clifford & Co. had transferred negotiable paper with Lyman's name on it, there would have been a similarity between the two cases upon this point. But a letter of credit is not a negotiable instrument. (See 1 Am. Lead. Cases, by Hare & Wallace, 327, 3d Ed. 1852, in Note to the case of Weston v. Tyler, and other cases.) And in this respect, the case at bar differs from the case of Payne v. Bensley, recently before this Court.
And, apart from the mere question of negotiability, the difference between the transfer of an accepted bill, and drawing against a letter of credit, is marked.
An accepted bill is an evidence of indebtedness. But a letter of credit is not an evidence of indebtedness. The person to whom it is shown has no right to conclude that the maker of...
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