
    Henshaw v. Curtis Coe and Joseph Coe, Executors of Joseph Coe, Deceased.
    The assignee of ¡a note, can have no right of action against the assignor, unless a recovery on the note is prevented; because nothing is due, or that the promisor was insolvent at the time of assignment; or by some act of the assignor, operating as a discharge; and if the assignee receive part of the promisor, by that act, he accepts of him as payor for the whole.
    Error from the Court of Common. Pleas. Henshaw brought Lis action on the case against the defendants. The declaration contained two counts:
    1. That in November, 1769> one Elisha Clark (since dead) executed a promissory note to the testator for £18 10s. And in August, 1771, for the consideration of £20 8s. 9d. (being the principal and interest then due) the testator assigned it to the plaintiff. That the plaintiff had demanded payment of Clark, who refused, of which he had given notice to the testator; whereupon he became liable, assumed, etc.
    2. Count for money had and received.
    The defendants pleaded to the first count. That having prayed oyer of the note, there appeared to be indorsed on the back thereof by the plaintiff, £6 12s. 6d., received of said Clark, in January, 1779; and in April, 1780, judgment was rendered for the remainder. That at the time of the assignment of said note to the plaintiff, and for several years after, said Clark was abundantly able to discharge the debt. That the plaintiff did not prosecute said note in the law, until more than eight years after he received it; nor did he within that time give any notice to the testator, or the defendants, that said Clark had refused, payment; but held the same in his own custody, without offering to return it; that said Clark is now dead, insolvent, and the contents of said note lost.
    That the second count is'for the same matter, cause and thing alleged in the first count.,
    
      Tbe plaintiff demurred generally — and judgment was rendered for tbe defendants.
    Tbe error assigned was, that tbe plea in bar was in substance tbe general issue, and contained only a denial of tbe facts stated in tbe declaration; therefore could not be pleaded in bar, but if true, ought to have been given in evidence under tbe general issue.
    Mr. Dana and Mr. Woodruff, for tbe defendants in error,
    pleaded in abatement, that the plaintiff appealed from tbe judgment of tbe Court of Common Pleas during tbe sitting of tbe court, and entered bonds therefor, according to law; therefore final judgment was not yet rendered in said cause.
    Mr. Miller, for tbe plaintiff in error,
    demurred, because no duty bad been paid on tbe appeal — and the plea was adjudged insufficient.
   By the whole Court.

The appeal was void, tbe state duty not having been paid and certified as tbe law directs; therefore no process was pending thereon. Tbe defendants then pleaded in nullo est erraium — and tbe judgment of tbe Court of Common Pleas was affirmed.

By the whole Court. By the assignment of the note declared tha ms i\\% tc> veco-vei receive tbe money duo thereon, of Elisha Clark, who executed tbe note: And therefore tbe defendants could not be liable to any action thereon, unless tbe plaintiff should show that tbe money could not be recovered or obtained from Clark, either on account of its not being due, or tbe promisor being insolvent at tbe time of tbe assignment, or some act of tbe assignor to discharge it afterwards: Neither of which is alleged in tbe present case. And Clark, years after tbe assignment, became and is insolvent. And tbe plaintiff, by receiving part of tbe money due on the note of tbe promisor, is considered in law as accepting him payor for tbe whole.  