
    Mackie’s Executor v. Davis, &c.
    October Term, 1796.
    [1 Am. Dec. 482.]
    Assignment — Liability of Assignor — Due Diligence-Province of Jury. — The assignor of a bond is liable to the assignee, who, after having used due diligence to recover the money from the obligor, has failed fo do ao. What is dne diligence, is a question proper for tlie determination of the jury.
    Assignor of Promissory Note — Liability—Statute of Ann. — The assignor of a promissory note was liable to the assignee before the Statute of Ann, in case payment was not made by the maker, when demanded.
    This was an action on the case brought by the appellees against the appellant, in the District Court of Williamsburg. The declaration contained three counts. The first stated that the testator Mackie, being indebted to the plaintiffs in the sum *of ^1000, for money laid out and advanced for his use, and being possessed of a bond of one M, to that amount, a conversation was had between them &c. whereupon it was agreed, that Mackie should assign over the said bond to the plaintiffs, and that the plaintiffs should receive the same, and should demand payment of the said bond from the said M, and on failure to pay, that they should bring' suit upon the said bond, and should prosecute the same in a reasonable time to judgment and execution, and that the said Mackie should be discharged from the sum of money then due as aforesaid, but in case all or any part of the said bond should be undischarged on demand, and suit as aforesaid should be prosecuted and judgment obtained and execution should thereupon be sued out, and on return thereof there should not be wherewith to satisfy the same, that then the said Mackie should make good the whole, or such part of the said bond as should then remain due: that in consideration of the plaintiffs promise to perform their part of the said agreement, the defendant promised to perform his part of the agreement. That the plaintiffs did demand payment of the said bond according to the tenor of the said agreement, of which they received £100, in part thereof, and no more, and on refusal to pay the balance, they had in a reasonable time brought suit upon the said bond, recovered a judgment, and sued out an execution in due form of law, on which execution, it was returned, that there were not effects wherewith to satisfy the said debt, and that the plaintiffs have discharged the said Mackie from the debt first due. 2d count, That the said Mackie being indebted to the plaintiffs in another sum of ^1000, did in consideration that the plaintiffs would release him from the said debt, assign to them another bond for the same amount due from one M, which assignment was made according to the act of assembly in that case made &c. whereby the defendant became liable on default of the said M, to pay the plaintiffs all such sums of money aá should remain due on the said bond; the breach is, that the said bond except ^100 is yet due, and that the plaintiffs are unable to recover the same, and the defendant being so answerable did assume to pay the plaintiffs the balance of the said bond yet due. 3d count for money had and received to the usé of the plaintiffs.
    Upon the pleas of non assumpsit, and the act of limitations, the jury found a verdict for the plaintiffs, subject to the opinion of the court, “whether an action can be maintained against *the endorsor of a bond, or his executors, without any special undertaking on his part to insure the payment thereof.
    Judgment for the plaintiffs in the District Court, from which the defendant appealed.
    Washington argued the case for the ap-oellant.
    I am not concerned in this cause;
    but as it involves a question which may arise in another case before the court, in which I am engaged, I will beg leave now to state my sentiments upon the subject.
    I shall consider the question generally, whether the assignor of a bond, without a special contract, is liable, in case of inability in the obligor to pay?
    The material grounds of the action of as-sumpsit arising from an implication of law, are, 1st, To recover back money paid under a mistake, or through deceit. 2dly, To recover money paid for a consideration which happens to fail. 3dly, To recover money paid to one acting under a void authority. 4thly, Dor money obtained by extortion &c. Sthly, For money embezzled, of which a person has been defrauded by cheating, and 6thly, For money received on a judgment which is afterwards reversed. If the present question can be brought within the principle of any of these cases, it must be the second.
    X shall here make a concession, which will at once shew the full extent of the application which, I suppose, may be made of the principle authorised under this head. If the assignor have no interest in the thing assigned, as if he be not entitled to the bond, or if the same hath been before satisfied, whether with, or without his knowledge. I will not question his liability in this form of action ; for in either of those cases, there is a total failure of the consideration. He receives a consideration upon the avowed sale of something, namely a debt due, when in fact, there is no debt due at all, or if due, he has no title whatever to receive, or to dispose of it. So, if a man sell any other chattel, to which he has no title, this action will lie to recover back the money paid for it, upon the principle, that the consideration had failed. The reason is, that in all sales of personal property, there is an implied contract on the part of the vendor, that he has a right to make the
    sale, and for a breach of this implied contract, assumpsit to recover back what was paid will lie.
    But the implied contract goes no farther. If the assignor have a title to the debt of which the bond is the evidence, there is at the time, an existing, and valid con-222 sideration given. A future *diminution or loss of the debt, can never upon any principle relate back to the contract, so as to destroy it, any more, than the subsequent death of a horse would, or the burning of a house in the possession of the vendee. I will go farther, and admit, that if the assignor be guilty of fraud, as bv mistating the circumstances of the obligor, or even by concealing them, (if known to him) he might be liable; not because the consideration had failed, but on account of the fraud.
    There is certainly no ground to create an implied assumpsit that the assignor will pay, if the obligor cannot. An implication of this sort must be a necessary one, or such as grows essentially out of the justice of the case. If the consideration fail, it is a just and natural implication that the money should be repaid; but if it turn out to be less valuable than the vendee or assignee supposed, (the vendor being clear of fraud,) it is only an unfortunate speculation, which the vendee must bear. Such an implication is inadmissible on another ground; because it being in the power of the parties to stipulate for such a responsibility, their silence on the subject, is strong evidence that it was not intended.
    Bonds are as much articles of traffic as any other personal property; their value depends upon the ability of the obligors to pay, and of the assignee to wait for his money. They never command their nominal amount. Consequently, in bargains of this kind, the purchaser will inform himself of all those circumstances, which may enable him to decide upon the value of the bond; if he deceive himself, he has no person to blame. If the obligor be able to pay at the time of the assignment, but from an unexpected accident become afterwards disabled, ought the loss to fall upon the assignor, who if he had retained the bond, might in some way have got satisfied? If the assignor can be made liable under an implied assumpsit, in case the obligor cannot, with equal propriety, would he be liable in case the obligor would not pay, and this would assimilate the case of bonds to bills of exchange without the custom which regulates this liability in the latter case, as I shall presently shew.
    There isa much stronger reason, why the assignor of a debt not legally transferable, should in such an event be made liable, than in a case of this sort; for in that, it might with some plausibility be contended, that since the debt could not be sold, or trans-fered, the assignment, which must be construed to mean something, could only mean that the assignee should receive the money. But the assignment of a bond being necessary to transfer -a legal right to the money, its use is apparent, and leaves no room for presumption.
    I have thought proper to consider this question upon common law principles, before T notice those cases which may seem to have an influence upon it.
    As there are two instances, in which the assignor of a negotiable paper may be made liable in default of payment, they must be noticed, and examined; these are the cases of bills of exchange, and of promissory notes. The right of recovery in the first is created, not by the common law, but by the custom of merchants. The common law only provides the remedy. An implied contract between the assignee and the assignor is created by the law of merchants, which when once established, brings the case within those common law principles where the action of assumpsit is warranted. By the very act of drawing, a man, by the mercantile law, is understood impliedly to engage, not only with the payee, but with every subsequent holder, that the drawee is to be found at the place at which he is described to be, that if the bill be duty presented he will accept it, and when due, that he will pay it, if presented in proper time.
    In default of any of these particulars, his implied contract is broken, and if the holder perform the implied conditions on his part, the drawer is liable. But what law, what custom has sanctioned the presumption of a tike implied contract in the case of bonds? And without such a supposed engagement, there is no common law principle to warrant a recovery. The law of merchants is in commercial matters, what municipal law is in the common transactions amongst men. We cannot fairly reason from cases governed entirely by that law, to others not under its influence. As to promissory notes, the right of recovery against the endorser is expressly given by the statute of 3d and 4th Ann. C. 9, and from this provision, an invincible argument is to be drawn in favor of my position; for if in a commercial country, like England, it was necessary for the legislature to provide a remedy against the endorser of a promissory note, it is obvious, that no such right existed at common law.
    Another, and a still stronger argument to prove the same conclusion is furnished by our laws. The act of 1748, in express terms, provides a remedy against the drawer or endorser of a bill of exchange, authorises the assignment of bonds and notes of hand, and yet is silent as to the liability of the assignor.
    *The same subject is taken up in the revision of the laws but a few years past; the importance of this sort of negociation was better understood; the statute of Ann was before the legislature, to prove that legislative aid was necessary to produce this liability, and yet no such provision was made.
    I hold it that legislative interference is necessary; that if bonds are in this respect to be likened to bills of exchange, some system should be established similar to that enacted (if I may use the expression) by the law of merchants. Tor I would ask, upon what conditions, and at what time is this responsibility to commence? When does the action accrue? Is a demand and a refusal sufficient; Must there be a judgment and execution? Must there be an actual insolvency in the obligor proved, or will a return of nulla bona suffice?
    If the court determine that the assignor is liable, there will be a necessity, to complete the system, that all these points be fixed; for else, the difficulties which attend this question will be rather encreased than diminished.
    The mercantile law respecting bills of exchange is perfect upon this subject; the drawer or endorser is liable, but upon certain conditions; the bill must be duly presented, then protested, and afterwards, notice thereof given immediately to the persons who are to be charged, which gives them an opportunity to save themselves. If we adopt the same principle, it behoves us to borrow the same regulations; and the question is, if this be the work of a legislative, or of a judiciary body? I think it cannot belong to the latter.
    Wickham for the appellee.
    The act of Assembly, by authorising the assignment of bonds, does in effect put them upon the footing of other negotiable papers, except in one particular instance, which is specially provided for; I mean, the right of the obligor to discount against the assignee, payments made to the obligee before notice of the assignment.
    It is admitted, that in the case of a bill of exchange, the indorser is liable; but it is contended, that this is by the custom of merchants. I believe no case can be produced to support this idea ; for in the action against the drawer, it is not necessary to set out the custom, as it is in an action against the acceptor, 3 Bac. ab. 614. The custom of merchants regulates the steps necessary for the holder to pursue, and annexes conditions which if not performed, ma3' defeat his right to recover. But the right itself is founded in common law principles. The indorser sells to the indorsee, the money, of which the bond is but *the evidence, and impliedly undertakes that it shall be paid; if not, that then he will make it good. The assignment, like an order drawn, is evidence of so much due from the assignor, in case the money is not paid by the obligor, or drawee. The assignment of a bond is in the nature of an order drawn by the creditor upon his debtor, directing him to pay to the assignee the contents of the bond, with this single difference; that if it had been an independent order, not transferring at the same time a right to the evidence of the debt, as well as to the debt itself, a demand upon the drawee and his refusal, would entitle the payee to recover of the drawer; for without acceptance, the payee could maintain no action against the drawee. But the assignment of the bond itself, conveying not only a right to the debt, but a legal right to sue, the assignee ought to pursue the obligor as far as he can, before he resorts back to the assignor, because such would naturally be the understanding of the parties at the time of the transfer.
    When bonds are endorsed for valuable consideration, it is always to be presumed, that a precedent debt was intended to be thereby discharged. That they may sometimes be sold, I shall not dispute, but there are so many cogent reasons against such a traffic, that it is never to be presumed, unless the contrary appear. A bond is but the evidence, or representative of money, and therefore may properly discharge a pre-ex-isting debt. This was undoubtedly the use which the legislature supposed would be made of bonds, when assignments of them were permitted. It was never contemplated, that they were to become a subject of speculation. If a bond be assigned in consideration of a precedent debt, it will be admitted that the debt, is not thereby discharged without a special agreement for that purpose. The reason of this will apply with considerable force, even to the case of bonds actually sold. It is the payment of the money, not the bare assignment which forms the consideration in either case; if the money be not paid, the consideration fails, as completely, as if no such debt had in truth existed. Where is the difference to the assignee? The question in substance is always the same, namely, has the assignee received the consideration, for which he paid his money? Ror unless he has, the vendor cannot ex oequo et bono retain what he has received.
    This case is assimilated (tho’ I think not very aptly) to that of the sale of personal property. But admit the likeness for a moment, and the argument on the other side will not be thereby strengthened. One man then sells to another a horse, or so *many bushels o± wheat in the possession of a third person, and sends an order for the delivery; the person on whom the order is drawn, has the property actually in possession, but afterwards sells it, destroys it, or refuses to deliver it up. Will not the vendor be liable," upon his implied contract, not only that the property was his, and in existence, but also that the holder would deliver it on demand? Such is the nature of an assignment of a bond, which in truth, is the mere transfer of so much money of the assignor’s lying in the hands of the obligor; it is not the sale of the paper and wax, for that might have been sold without the aid of the legislature.
    No argument of weight can be drawn from the statute of Ann, the professed object of which, was to assimilate promissory notes to bills of exchange; to ascertain the time, and terms of the endorser’s liability.
    The argument, that an implied agreement on the part of the assignor, cannot be presumed, because the parties might have expressed it, proves too much; for it would defeat such an implication, in cases where it is admitted to exist; such as the implied warranty upon the sale of personal property; and in cases, where the consideration happening to fail, a promise to repay the money, is implied.
    As to the difficulties apprehended by the counsel for the appellant, they are not insurmountable. It is not necessary for the court to specify, at what period, or upon what conditions the remedy against the assignor may be pursued. It is sufficient, if it be laid down, that due diligence to recover the money from the obligor must be used; and what is due diligence, must always be a fact fit for the determination of a jury, upon the whole evidence submitted to them.
    Randolph on the same side.
    I shall endeavor to shew, that the liability of the assignor is founded in common law principles. The examples of implied assumpsits mentioned by Mr. Washington, are entirely correct, but I cannot perceive, why they were enumerated, unless for the purpose of diverting our attention from a general principle, not coming literally within either of those mentioned by him, but which must decide this question. This principle is laid down by lord Mansfield, in the case of Moses v. M’Rarlane, 2 Burr. 1008, in answer to an objection against the defendant’s, being obliged to refund money, which he had improperly recovered in an adversary-suit. I will quote his words: “If the defendant be under an obligation, from the-ties of natural justice, to refund, the *law implies a debt, .and gives this-action, founded in the equity of the plaintiff’s case, as it were upon a contract.”' Again, he lays it down, that this action will lie, if in conscience and justice, the-defendant ought not to keep the money.. Now for the application of the principle;. if the debt had not been due to the assignor,, it is admitted that he would have been liable. Why? Because the consideration having failed, the assignor ex oequo et bono-ought not to keep, what he had received, and he is presumed to have contracted to-refund it. But is the situation of th'e as-signee better, or is his equity less cogent if the obligor be unable to pay? In both-cases, he loses the thing purchased, and' paid for, land consequently, in both, the consideration has failed. Nor is the situation of the assignor made worse, so as to create in him an equity, strong enough to-repel that of the assignee; for the debt might as well have been lost in the hands, of the former, as of the latter.
    The only difference between the assignment of bonds in Sngland, and in this country, is, that in the former, the right to-sue in the name of the assignee is not transferred, and therefore it is accompanied' with a power of attorney. If the money cannot be recovered, it is not questioned but that the assignor is liable, whether he sold the claim or paid it away in discharge of a precedent debt. And why is he not equally liable, where by the assignment, he puts it in the power of the assignee to use his own name, instead of that of the assignor?
    It is supposed, that we must seek to shelter ourselves under the likeness, which bonds, when assigned, bear to bills or stat-utary notes. I disclaim the comparison, and shall consider this case as standing upon the same ground, as notes of hand did before the statute of Ann. It is not true, that the right of recovery against the in-dorser, was created by that statute ; for prior thereto, the assignee had only to demand the money from the drawer of the note, and on refusal he was at liberty instantly to sue the indorser, Lambert v. Oakes 1 Ld. Ray. 443. It may possibly be said, that notes were within the custom of merchants, as well as bills; but this is not the case, Kyd on bills 12.
    I do not considér it necessary, that a suit should be brought at all against the obligor; for if upon demand, he refuse to pay, the assignee may pursue his remedy against the assignor, as in the case of promissory notes at common law. It is like the case of a covenant to make a good title to lands, where, if it be not in the power of the vendor to do it, the vendee may sue immediately *upon the covenant, without waiting the issue of a previous suit to try the title.
    Many difficulties have been suggested, and thrown into our way, which tho’ they may embarrass us, can never change well established principles. I will attempt to answer them, tho’ it is certainly not necessary. What is the degree of diligence which the assignee is to use, in demanding, or (if a suit be necessary), in suing for the money? The answer is, that the jury will always determine that question upon the circumstances of each case; there are a variety of instances in which the law has determined what is convenient time.
    It is asked, can all the assignors be sued, separately or together? I think they cannot. There is a privity of contract between the assignor and his immediate assignee, and consequently, the latter can go no farther back. It is like the case of a warranty, where the covenant can extend only to the parties immediately contracting.
    Washington in reply.
    The argument, that the plaintiff may recover, where the defendant has received money, which ex oequo et bono he ought not to retain, may prove any thing, or nothing in this case. In the application of it, the counsel are compelled first to beg the question. Is the assignor bound in conscience to refund? If the consideration has failed, he is; but if a real consideration were given, he is not. It is contended, that the consideration has failed, and so it would have done, if it had been a sale of a horse, which instantly after died. If the thing sold had a real existence, and the vendor had a right to sell, the subsequent loss of the debt could no more bind the conscience of the assignor, than it would that of the vendor of a horse, in the case supposed.
    The assignment is resembled to an order upon the obligor to pay. The likeness might be more easily discerned, if it were the case of a paper not negotiable; for then, it could only be construed as a direction how the money should be paid. But being assignable, the obligee sells his right to the bond, in the same manner as he might dispose of his right to any personal chattel whatever; th.e implied contract is the same.
    The case of Lambert v. Oakes, as reported in Salk. 127 — 12 Mod. 244, and Holt. Rep. 117, appears to have been that of a bill of exchange. So that nothing can be thence inferred, to do away the strong presumption, to be drawn from the statute of Ann; namely, that legislative aid was necessary to subject the endorser.
    
      
       Assignments — Liability of Assignor — Due Diligence. —In West Virginia, the assignor of a bond is liable to the assignee, who having used due diligence to recover the money from the obligor, bas failed to do so. Thomas v. Linn. 40 W. Va. 130, 20 S. E. Rep. 880, citing the principal case.
      The principal case is cited in. Dent v. Ashley, 7 Fed. Cas. 497, for the proposition that the assignee of a bond or note, not negotiable, must, before he can resort to the assignor, prosecute the payor or obligor to insolvency.
      Same — Same—Same—Suit Excused When. — As a general rule, the assignee cannot recover from the assignor the amountpaid for the assignment, unless due diligence is used, without effect, against the debtor; but it is in. no case necessary to pursue the debtor, if it be clear that such pursuit would be nnvailing; as if the obligor be insolvent at the time of the assignment; or when the note falls due; or where the note is a forgery; or where the maker is a married woman. Morrison v. Lovell, 4 W. Va. 350, citing Mackie v. Davis, 8 Wash. 219; Violett v. Patton, 5 Oranch 142; Brown v. Ross, 6 Mnnf. 391; Catón v. Lenox. 5 Rand. 31: Burrell v. Smith, 7 Pick. 291: Erwin v. Downs, 15 IN'. Y. 575.
      InSlifer v. Howell, 9 W. Va. 397, the court said: ‘ ’A suit is not always necessary to entitle the assignee to recover back, but he must show that a suit would be unproductive of good, and that the assignor has suffered no loss for the want of such suit; such as the notorious insolvency of the debtor, or some reason why a judgment could not be had. Mackie's Ex’or v. Davis, 2 Wash. 219; Catón v. Lenox, 5 Rand. 42.’’
      Same — Same—What Is Due Diligence, — As to what is such due diligence on the part of the assignee of a bond or note to recover from the obligor or maker, as will entitle him to resort to the assignor, see the principal case cited in Smith v. Triplett, 4 Leigh 597, 599; Saunders v. Marshall, 4 Hen. & M. 456; Barks-dale V. Fenwick, 4 Call 502, 503, 504, 506, 508. 510; Dun-lop v. Harris, 5 Call 55; Bronaugh v. Scott, 5 Call 88; Hopkins v. Richardson. 9 (trait. 495; Goodall v. Stuart, 2 Hen. & M. 113. 115: M’Williams v. Smith, 1 Cal! 126. See Lee v. Love, 1 Call 497, and note. For a full discussion of this subject, see monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
      Same — Recovery from Assignor — Assumpsit.—That recovery may be had by an assignee against an assignor of nonnegotiable paper on the common counts for money had and received, in indebitatus assumpsit,, see the principal case cited and approved in Hughes v. Frum, 41 W. Va. 447, 23 S. E. Rep. 605; Drane v. Scholfleld. 6 Leigh 396; Walker v. Henry, 36 W. Va. 110, 14 S. E. Rep. 443. See foot-note to M'WUliams v. Smith, 1 Call 123. See monographic note on “Assumpsit” appended to Kennaird v. Jones, 9 Gratt. 183.
      But see the principal case cited in Wood v. Lnttrel, 1 Call 238, 240. where the court said that there should be special counts setting forth the nature of the demand, besides the common money counts. See the principal case cited in Barksdale v. Fenwick, 4 Call 505: Walker v. Henry, 36 W. Va. 107, 14 S. E. Rep. 442.
      Same — Same—Grounds of Recovery. — The principal case is cited in Cunningham v. Herndon, 2 Call 532, for the proposition that an assignment presupposes a property in the assignor, and a recovery may be had against him on the failure of the obligor, on the ground of a debt due by him to the assignee; of which the draft, called the assignment, is an evidence.
      Same — Same—Same—Proof of Mesne Endorsements. —The principal case is cited in M’Williams v. Smith, 1 Call 125, as authority for the proposition that the action to' the assignee against the assignor is founded principally on the privity which exists between them, and, therefore, the mesne endorsements need not be proved.
      Same — Recovery by Assignee against Remote Assignor. — Prior to the statute authorizing a recovery from an assignor, an assignee had the right, upon the principles of the common law, to recover from his immediate assignor under the contract implied from the assignment, that the assignor would repay the consideration he had for the chose in action assigned. if payment thereof, by the use of due diligence. could not be obtained from the obligor or maker. This implied promise was not considered, however, to extend at law to any other than the immediate assignee, and consequently no assignee could recover at law from a remote assignor. Long V. Pence, 93 Va. 587, 25 S. E. Rep. 593, citing Mackie v. Davis, 2 Wash. 210 ; Catón v. Lenox, 5 Rand. 31, 42 ; Mandeville v. Riddle, 1 Craned 290 ; Yeaton v. Bank of Alexandria, 5 Cranes, 49. The principal case is; cited in Drane v. Scholfleld, 6 Leigh 396 : Walker v. Henry. 36 W. Va. 110, 14 S. E. Rep. 443; Dunlop v. •Harris, 5 Gall 43, 44, 51, 53. 57. But see Va. Code 1887, § 2861 ; W. Va. Code, ch. 99, § 15. authorizing a recovery by an assignee against a remote assignor.
      Same -Same — Measure of Recovery. — The assignee of a note, notnegotiable. can only recover from a remote assignor the consideration paid such assignor by his immediate assignee for such note. Goff v. Miller, 41 W. Va. 683, 685, 24 S. E. Rep. 644, citing 1 Tuck. Com. 336, 337 ; Mackie v. Davis, 2 Wash. 219 ; Whitworth v. Adams, 5 Rand 377 ; Drane v. Schol-fleld, 6 Leigh 397 ; Thomas v. juinn. 40 W. Va. 122, 20 S. E. Rep. 878. The principal case is cited with approval ill Thomas v. Linn, 40 W. Va. 122, 20 S. E. Rep. 881 : Gibson y. Fristoe. 1 Call 75.
      Same— Warranties of Assignor. — In Bronaugh v. Scott, 6 Call 94. President Lyoss said it was decided in the principal case that the assignor warrants that the debt is dne, and the debtor solvent. For a collection of authorities on this point, see mono-graphic note on “Assignments” appended to Rags-dale v. II agy. 9 Gratt. 409
      Assignment of Bonds and Notes — Effect of Statutes. —In Oaton v. Lenox, 5 Rand. 42, the court discussed the effect of certain early statutes on the assigna-bility of bonds, notes, etc., and after citing the principal case and Norton v. Rose, 2 Wash. 233, it was said : “These cases decided, that it was not the intention of the legislature, to place bonds and notes on the footing of commercial paper ; but merely so far to change the common law, as to enable the as-signee to sue in his own name ; taking the paper subject to all the equity of the obligor or.maker.”
      Leading Case on Doctrine of Assignments. — In Merchants’ Nat. Bank v. Spates, 41 W. Va. 27. 23 S. E. Rep. 682. the court said : “The case of Mackie ¶. Davis, 2 Wash. (Va.) 210, was decided in 1796. and has been a leading case in Virginia and in this state on the general doctrine of the assignment of nonnegotiable instruments, and the general doctrine there discussed has from that day to this, been followed, expanded, and applied in many cases.” See generally, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409. See 2 Va. Law Reg. 559.
      Debt — Acceptor of Bill. — As to whether an action of debt will lie against the acceptor of a bill of exchange, see the principal case cited in Smith v. Segar, 3 Hen. & M. 397 ; Regnault v. Hunter, 4 W. Va. 269.
    
   *ROANI3, J.

This is an action on the case, brought by the assignee of a bond, to recover of his immediate assignor, compensation on account of the non paj'-merit of the bond by the obligor. The first count states a special agreement of the assignor to be liable on failure of payment. The second, states the liability, as a legal inference from the assignment for valuable consideration, and the non-payment by the obligor. The third count is for monej', had and received. But the case as stated by the jury, allows no ground to presume a special agreement, and therefore, we must decide this as a general question. That question is, whether an action can be maintained against the assignor of a bond, without a particular undertaking on his. part to insure the payment? That due diligence was used by the appellees to recover the money from the obligor, is admitted, by the verdict, and therefore, this circumstance will be considered as forming a part of the case.

In the cases of bills of exchange, it is admitted on all hands, that an action will lie against the drawer or endorser, if payment be not made by the drawee; but it is contended, by the counsel for the appellant, that this arises out of the custom of merchants. As against the acceptor, the argument is correct. He undertakes to pay the debt of another, and consequently, can only be charged in a special action on the case, founded upon the cu*tom of merchants. But against the drawer or indor-ser, indebitatus assumpsit will lie, because the draft in itself imports a debt to be due. Promissory notes, stand in the same situation, the indorser being considered as a drawer. It is on account of the privity between the indorsee and the indorser, that this action may be maintained. The action is not founded on the bill or note, but upon the implied undertaking, and the bill or note, is evidence only of that undertaking. These principles owe their existence, not to the custom of merchants, but to the common law.

Let us pursue these principles, and they will give light to the further investigation of this question. The case of promissory notes will be an important guide, and therefore it will be proper to see, how they stood, previous to the statute which it is supposed created the liability of the indor-ser of them. Lambert v. Oakes, is most correctly reported in Ld. Ray 443, as the observations made by Kyd in his treaties on bills of exchange, page 109, incontestably prove. This case was decided antecedent to the statute of Ann, and was consequently governed by the principles of the common law. It was there ^determined by lord Holt, that the indorsee of a promissory note, might recover against the indorser, if payment of the note had been demanded and refused. It would seem as if this case decided the question. Bonds in England, are not assignable, and therefore stand in the same situation as notes of hand did at the time when this case was determined. I can see no reason, why the assignor of a bond should not be liable in the same manner, even in that country, though I do not at present recollect any such case.

In this country, the assignee of a bond acquires a legal right to bring suit upon it, and to receive the money, discharged from any controul of the assignor over the subject; it is therefore his duty to bring suit. The assignment does in itself import a debt due to the assignee, and there is the same privity of contract between the two parties, as exists in the cases of bills and notes. They are all governed by the same common law principle, and consequently, an indebitatus assumpsit will lie in this country against the assignor of a bond, in the same manner, as it will in England against the indorser of a bill or note. The object of our law was not to defeat this common law remedy, but merely to give a right to the assignee to sue in his own name, which otherwise he could not have done.

The same common law principle will extend much farther than the case now before the court. I ,have no doubt, but that it will reach the case of a transfer of a bond without an assignment, and that the transferee having used due diligence to recover the money, may maintain an action against the person from whom he obtained it, for money had and received; the assignor can defend himself only by an express stipulation to the contrary. In the case of bills, transferred -by delivery only, it is laid down in 1 Ld. Ray, 442, that the person making the transfer ceases to be a party to the bill; that it is a sale, a'nd the seller not bound to refund, if the bill be not paid. But Kyd in his treatise on bills of exchange page 60, very properly observes, “that this is only true in the case of a demand by a subsequent party, when several have intervened between him and the person against whom the demand is made; it can never apply as between the immediate parties to the transfer; for though the person who has given the money for the bill or note cannot recover against the person who received it, as indorser, he may recover in an action for money had and received for his use, as the transferer must be understood to undertake for the *bill being duly paid.” This is certainly sound doctrine. I am for affirming the judgment.

CARRINGTON, J.

Independent of those principles of the common law, which create on the part of the assignor of a bond, an implied undertaking to pay, if the obligor does not, the general understanding of those who enter into negociations of this sort, would be sufficient to make the assignor liable. The assignee, purchases principally upon the credit of the person from whom he receives the bond. He is not always acquainted with the obligor, or with his circumstances.

The difficulties which were mentioned at the bar, are not insurmountable. Whether due diligence had been used by the assignee to recover against the obligor would necessarily be a matter in issue between the parties, and would upon all the circumstances of the case be decided by the jury.

As to the extent of the assignor’s liability, I think it can only reach the sum actually received, in case the obligor is able to prove it. If he cannot do this, it is to be presumed that he received an equal sum with that due upon , the bond. If incautiously, the consideration actually received be not stated in the assignment, and it can no otherwise be proved, a court of equity is open to the assignor, and he may there seek a discovery of that fact.

As to the lengths which it behoves the assignee to go in pursuit of the obligor before he can resort to the assignor, it is unnecessary to lay down any general rule; it may suffice to say, that in the present case, he went far enough.

IvYONS, J.

There is in this .case, but a single question propounded by the jury; which is, can the assignee of a bond maintain an action against the assignor, without a special undertaking by the latter to insure the payment? No facts, or circumstances are stated, from which it can be presumed, that the assignment was conditional, or that it was such, as in any manner to discharge the assignor from all recourse against him.

To get at the real point in this and similar questions, we should first settle, what is the essence of the contract which the parties enter into? what is it that is disposed of by the one, and- acquired by the other?

In the sale of lands, the vendee purchases soil, not parchment. If it be a bill of exchange, a note of hand, or bond, it is money in the hands of a third person, which is given in exchange, by the person to whom it belongs, for another sum of money, of for something else which he deems equally valuable. *The paper, is only the evidence of his right, and in itself has no intrinsic worth. In this case, we are to presume, that a full consideration was given, which could not have been for the paper and wax, but for the money, which the bond imports to belong to the assignor. If a full consideration had not been paid, that might have been a circumstance, from which the jury might have inferred a special agreement on the part of the assignee, to ’ take the bond without recourse.

The right of the assignee to resort back to him from whom he acquired the bond, is bottomed upon principles of common law. There is an implied agreement by the assignor, that the money which he sells, and for which he receives an equivalent, shall be received by the purchaser, as much so, as if any personal property whatever were the subject of the contract. There is no reason, why an implied warranty should not exist in the sale of bonds, as well as in the sale of other property.

If this right then existed antecedent to the act of 1748, which made bonds assignable, how is it affected by that law? New rights are acquired under it, and the in-conveniencies of the common law, which obliged the assignee to use the name of the assignor, are removed.

But this is obviously intended for the benefit of the assignee, and cannot be construed consistently with the spirit of the law, to deprive him of preexisting rights. The legislature could not mean to provide him with a new remedy, and at the same time to lessen the security which he before enjoyed, nor does such a consequence grow out of the law. It was strongly insisted upon at the bar, that such a conclusion was fairly to be made, because a remedy against the assignor was not given. The answer to this is, that it was not necessary ; and since it is not expressly taken away, it still continues to exist as it did before the statute was made.

Upon the whole I am of opinion, that the assignor is liable, unless there be some special circumstances to shew that it was not so intended by the parties, at the time the assignment was made.

Judgment affirmed.  