
    *Lee v. Love & Co.
    [Monday, May 13, 1799.]
    Assignments — Recourse to Assignor — Diligence.—Tile assignee of a note of hand, must sue the maker, before he can resort to the assignor.
    This was an action on the case, brought by Lee against Love & Co. in the District Court of Dumfries; in which the plaintiff declared that William Skinker, on the 19th of October, in the year 1793, made his note in writing called a promissory note, to Love & Co. and thereby promised to pay to Love & Co. or order, on the 19th of April, in the year 1794, at the counting-house of' Josiah Watson in Alexandria, 1030 dollars, negotiable at the Bank of Alexandria, for value received. That Love & Co. assigned this note to the plaintiff, before the day for payment thereof; of which Skinker had notice. That the said note was not paid according to its tenor and effect; but the payment thereof had been wholly neglected and refused; of which Love & Co. had notice. Whereby, and by reason of the act of Assembly, in such cases made, Love & Co. became liable to pay the said 1030 dollars to the plaintiff; and being so liable, &c. assumed, &c. There was a second count for money had and received, by the defendants, to the use of the plaintiff; and the third count for money paid, laid out and advanced. Plea, non assumpsit, and issue. The jury found a special verdict, setting forth the note in these words: “Prince William county, October 19, 1793. On the 19th day of April, in the year 1794, at the counting-house of Josiah Watson in Alexandria, I promise to pay John Love & Co. or order, one thousand and thirty dollars, negotiable at the bank of Alexandria, for value received.
    Wm. Skinker.
    Teste,
    Henry Jordon.”
    *They also find the assignment in these words; “pay to Charles Lee the contents.
    John Love & Co.”
    And then follow these words: “If said endorsement is legal evidence, of the defendants having received money for the use of the plaintiff in the suit, we find that the defendant had and received for the use of the plaintiff 1030 dollars.” They then find the protest of the said note for non-payment, upon the 23d of April, 1794. They also find a letter from John Love, one of the defendants, to the plaintiff, stating, that he is sorry he has determined to sue him, instead of Skinker. That if the plaintiff would sue Skinker, the said John Love would give security, that if the money could not be made on the execution, that he the said John Love would pay it. That by suing Skinker in Eauquier, where he had large property, the plaintiff might immediately get judgment; and that he John Love would see to the business. That if this was refused, he should procrastinate the suit as long as he could. That a compliance on the part of the plaintiff would prevent trouble to the said John Love in recovering the money of Skinker after-wards. That, he did not consider himself bound to make extraordinary sacrifices for discharging this debt, under the circumstances of the case; and, therefore, if sued, should consult his own convenience in the payment, which he might be able to put off longer than Skinker. That if the plaintiff brought a suit against Skinker, that he John Love, gave him his honor he would endeavor to have judgment got as soon as possible against Skinker; which he should consider as necessary for his own safety. The jury further find, that no suit was ever brought by the plaintiff against Skinker; and conclude, that if the law be for the plaintiff, then they find for the plaintiff, and if for the defendant, then they find for the defendant.
    *The District Court gave judgment for the defendant; and the plaintiff appealed to this Court.
    Marshall, for the appellant.
    Contended, that the endorsement supported the count for money had and received. That, the assignee was not bound to sue the maker before he resorted to the endorser; for, there was an implied contract in such cases, that the assignor would pay the money, if the maker did not. And, finally, that, as this bill was negotiable at the bank of Alexandria, it stood upon the same footing with notes payable to the bank; and, therefore, that the endorser was liable, without suit against the maker. Act, 1791, c. 77, i 22; [Nov. 1792, c. 76, 13 Stat. Larg. 592],
    Wickham, contra.
    Contended, that it had been settled by this Court, in Mackey v. Davis, 2 Wash. [219,] that the maker must be first sued, and due diligence used; though circumstances might excuse, as absence from the country, or insolvency of the maker. That, there was no analogy betwixt this case and that of a note payable to the bank; because that was a contract betwixt the bank and debtor, but this was an engagement between the endorser and endorsee merely.
    Cur. adv. vult.
    
      
      Assignments — Recourse to Assignor — Diligence.— The principal case is cited in Dunlop v. Harris, 5 Call 45, 47; Hooe v. Wilson, 5 Call 73, 77; Bronaugh v. Scott, 5 Call 85; Dunlop v. Silver, Fed. Cas. No. 4,169, 8 Fed. Cas. 92; Walker v. Henry, 36 W. Va. 111, 14 S. E. Rep. 442; Thompson v. Govan, 9 Gratt. 699.
      Same — Same—Diligence Required in Case of Bill.— In Dunlop v. Harris, 5 Call 55, the court said: “In Lee v. Love, it was held that the assignee of a note must sue the maker before he could have recourse to the assignor. Whereas no such suit is necessary in the case of a bill. Again, the diligence required, according to the cases of Mackie v. Davis, 2 Wash. 219; McWilliams v. Smith, 1 Call 123: Minnis v. Bollard, 1 Call 226, and Barksdale v. Fenwick, 4 Call 492, is not the same with that which is requisite in the case of bills of exchange.” See the principal case cited in this connection in Saunders v. Marshall, 4 Hen. & M. 456.
      See generally, monographic note on "Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the judgment should be affirmed, as they considered the case as having been already decided.

Judgment affirmed.  