1789. Bay V. Freazer. 133. and changed the nature of the contract entirely. Instead of being a debt on the obligation against the obligor, or against the assignor by the assignee, upon an implied warranty, it became a new debt by the custom of merchants, so as to charge the defendant upon his indorsement. For every indorsement is in the nature of a new bill. It creates a new undertaking, independent of the original one. Salk. 125. An assignment of a bill, payable to J. S. or bearer, is not a good assignment, to charge the drawer with an action on the bill, but it is a good bill between the indorser and indorsee; and an indorser is liable on an action for the money, for every indorsement is in nature of a new bill. Salk. 125. 133. Show. 125. 3 Lev. 299. So that, admitting to the fullest extent of the word, that the bond is not a negotiable paper, still the indorsement of Freazer, the defendant, on it, makes it a bill of exchange, within the custom of merchants, and makes him clearly liable on that new undertaking alone. 3. The count for money had and received is the most general and extensive which can be framed. It comprehends and embraces almost every possible case, where a person is under any kind of obligation, in justice or equity, to pay money, to whomsoever he may be, who is entitled to receive it. Wherever a right is transferred, all the incidents attached to it go with it; so that whatever obligation the defendant was under to Hall, the plaintiff Bay acquired by virtue of Hall's transfer to him, as he stood exactly in his (Hall's) place. This right forms the essence of every assignment or indorsement, of one individual to another. The plaintiff, then, being in the situation of Hall, natural justice requires, that if the defendant got a sound and good property from Hall, he should give the value, or a good consideration for it: but if this consideration should fail, the same principles of justice require, that he should restore back what he had got, or pay its value to the plaintiff, the indorsee of Hall. In Moses and M'Farlane's case, 2 Burr. 1009, 10. this doctrine is very fully laid down, where Lord Mansfield says, the courts extend these kind of actions, so as to reach the justice of every case. In one word, he says, in all cases where the defendant is obliged, by the ties of natural justice, to refund or make good the money, this action for money had and received will lie. The Court were of opinion, that under the second count in the declaration, and the authorities and reasons urged in support of it, the plaintiff was entitled to a verdict. Every indorsement, they said, was a new undertaking, and gave negotiability when payable to order, and for value received, although the paper itself, on which the indorsement was made, was not originally negotiable. That this bill was sufficiently certain by reference, to bring it within the law of merchants. As to the first and last counts in the declaration, they expressly declared, that they did not mean to give any opinion on them, but would reserve themselves upon those points, until a case should occur where it would be necessary. The Jury found a verdict agreeable to the opinion of the court, but did not allow interest. 1789. Bay V. Freazer. MONGIN and Wife, late PENDARVIS, against BAKER and Southern Cir STEVENS. UPON a motion and application for a writ of dower, at Beaufort, in the April session of 1789, the following special case was reserved to be argued at bar in Charleston. Some time previous to the year 1782, Richard Pendarvis intermarried with Mrs. Mongin, the present plaintiff's cuit. The court will never give so harsh a construction to the confis cation act, as to deprive a person of a common law right; therefore, the widow of a person placed on the confiscation list, is entitled to her dower. 1789. Mongin and wife wife; and they lived and cohabited together till Pendarvis died. By the Jacksonborough(a) assembly of 1782, the heirs and devisees of Pendarvis were placed on the confisBaker and cation list; and since the peace, part of his estate was sold by the commissioners of confiscated estates, to Stevens, one (a) The village where of the defendants; and the residue, by an act passed in V. Stevens. the confisca tion law was 1784, was restored to Baker, the other defendant. The passed. question, therefore, was, whether the plaintiff's wife was entitled to dower in her former husband's estate, or not? Desaussure, in support of the application, contended, that the common law right of Mrs. Mongin became complete by the death of Pendarvis, her former husband, without any judgment or treason against him. 2 Black. 129, 30. It could not be taken away from her, but by some act of her's, amounting to forfeiture; or by some law, which, disregarding private rights, had disfranchised or divested her of this estate. In the present case, it was not pretended she had committed any act which forfeited her claim of dower. Innocent, therefore, herself, her right must remain unimpeached, unless some law deprived her of it. The only act or law in being, which can possibly affect the claim, is the confiscation act of 1782. By a clause in this act, the estate of the heirs and devisees of Pendarvis is confiscated, What was this estate? A fee-simple-liable to all incumbrances and charges. One of the first and highest of these, in the eye of the law, is a widow's claim for dower. It is preferable in law to mortgages and judgments. The state could not acquire any greater or higher estate in the lands in question, than the heirs and devisees of the deceased would have had. And if it had gone over to them, would it not have been chargeable with the widow's dower? Most certainly it would. With what apparent justice then, can the state be supposed to acquire a greater right than the heirs and devisees would have done. If such a doctrine were once admitted, it would in fact be saying, that a body politic or corporate has greater rights than an individual citizen. Her right, however, is not inconsistent with the confiscation act. This act enables the commissioners to sell 1789. Mongin and wife V. Stevens. so much as is confiscated; that is, so much as the state ac quired, which only reaches the estate of the heirs and devisees. They held one estate; she another. The act expressly reaches their estate, but does not in the smallest Baker and degree, attach itself upon her's. He quoted 2 Black. Com. to shew that different persons may hold different estates in the same land. Also, Id. 199. From whence he argued, that the omission of her estate in the lands in question, proved, that the legislature never intended to extend this heavy penalty to the widow. He next contended that common law rights were sacred in their nature, and not to be set aside lightly, by intendment or implication. On the contrary, that acts of attainder were generally looked upon with a jealous eye. They were highly penal, and for that reason it was a well known rule, that all penal statutes were to be construed strictly. 1 Black. Com. 87, 88, 89. It might be urged, he said, that the confiscation act amounted to a bill of attainder against Pendarvis; that it was tantamount to a conviction and judgment for treason at common law, which amounted to a forfeiture of the widow's claim of dower. But this he denied. At common law, it is true, that a conviction and judgment of treason works a forfeiture of dower, (2 Black. Com. 136.) but none such was pretended in this case. Pendurvis was never called upon to answer in his life-time; nor was any judgment of treason ever entered up against him. As to the terms of the act itself, there was nothing in it which would amount to an attainder, unless it was by a forced construction, no wise consistent with the humane principles of our constitu tion. Constructive treasons and attainders, are the most dangerous, the most pernicious doctrines ever introduced among mankind; fit, perhaps, for a star chamber, but not for a country which boasts of civil liberty. The confisca tion law, he granted, did punish certain classes of political offenders, for certain offences, (in many instances not capital by the then existing laws,) by confiscation of their property, and banishment of their persons; which, not 1789. Mongin and wife V. Stevens. withstanding it was highly penal, did not amount to an attainder, either expressly, or by operation of law. And to give it a contrary construction, would be stretching the Baker and penal system to an extent not authorised by the principles of our government, or the spirit of our criminal jurisprudence. Our courts of justice, surely, would not be fond of making implied attainders. The doctrine of attainders and forfeitures, he said, was losing ground daily. It was considered as a barbarous and odious policy, which took its origin in the times of feudal rigour. It first was punishing a man without giving him a trial or a hearing in his own defence, and then extending the punishment, which was due to the guilty only, to innocent persons, who could not possibly be concerned in the offence. For these reasons, the best informed writers of the present age had exerted their talents to place, in proper colours, the injustice and iniquity of such a system. He was happy to say that they had succeeded greatly in their endeavours, to enlighten legislators and statesmen on the subject, and consequently to mitigate the evils which had been brought upon so many nations by an adherence to it; and he hoped that the day was not far distant, when the good sense and liberality of the people of America would abolish it entirely.* Moultrie, attorney-general, against the motion. By the common law, the widow of a person attainted of treason forfeits her right of dower; and the reason of the thing speaks in support of the principle. For the common law goes upon the idea, that husbands are oftentimes influenced and governed by the sentiments and conduct of their wives. If, therefore, they do not exert this influence, by example and dissuasion, they are considered in the law, as having These sentiments have very generally prevailed throughout America, for by the 3d article of the constitution of the United States, it is declared, "that no attainder of treason shall work a corruption of blood, or forfeiture, except during the life of the person attainted." And the 2d section of the 9th article of our state constitution, adopted in 1790, says, "that no bill of "attainder, ex post facto law, or law impairing the obligation of contracts, "shall ever be passed by the legislature of this state.” |