
    *M’Williams v. Smith.
    [Thursday, November 9, 1797.]
    Assignment — Handwriting oi Assignor — Evidence.—In a suit against the assignor of a bond, the handwriting of the assignors prior to his own, need not be proved npon the trial of the cause.
    Point of Law — Opinion of Court. — if the party gets the opinion of the Court upon a point of law in one shape, he shall not be permitted to object, that it was not given him in another.
    Leckie gave a bond for the payment of money to Saunders; who assigned it to Greenhill; who assigned it to Duval; who assigned it to M’Williams; who assigned it to Smith; who brought suit upon it against the executors of the obligor; who plead fully administered, and had a verdict and judgment in their favor upon that plea: Whereupon, Smith brought suit against M’Williams, and counted, 1, specially upon the assignment and suit; 2, for money had and received to the plaintiff’s use. Plea, nonassumpsit, and issue. The plaintiff gave a copy of the record in the foregoing suit in evidence, and proved the assignment from M’Williams, but did not prove the other three assignments. The defendant excepted to the evidence, 1, because, although judgment had been obtained on the bond in another Court, yet the plaintiff had it in his possession; 2, because the first three assignments were not proved. These exceptions were over-ruled. The defendant then moved the Court to instruct the jury, that the defendant was not liable on his assignment, but the Court instructed the jury that he was. After which, the defendant desired the Court to direct the jury to find a special verdict, ‘ ‘stating the whole circumstances and facts which they should find in evidence, and leaving the law to the Court;” which the Court refused to do, and an exception to the refusal was taken. Verdict and judgment for the plaintiff. Erom which judgment, the defendant appealed to this Court.
    Said, 1. That Smith had been guilty of laches; and that, whether laches or not, was a question for the Court to decide, and not the jury. [Chamberlyn v. Delarive,] 2 Wils. 353. 2. That the record was not exemplified under seal, according to the decision of this Court upon a former 124 occasion. *3. That the Court ought to have directed the jury to find a special verdict, as there was matter of law involved in the' case.
    Washington, contra.
    There was no application to the Court to instruct the jury, whether Smith had been guilty of laches or not; they were merely asked their opinion, whether an assignor was liable, and they gave it that he was; which is agreeable to the decision of this Court. Although a party may have a right to the opinion of the Court, he should ask for it according to the decisions of this Court; but here he did not, upon the point of laches; and, therefore, has no ground for exception. If, however, the defendant had asked it, and the Court had refused, the refusal would have been right. In this country, even upon bills of exchange, the Courts do not instruct the jury as to laches, but leave it to themselves to decide. But there was no negligence in this case.
    There was no occasion that the record should be exemplified under seal; the case of Burk’s exrs. v. Trigg’s exr. 2 Wash. 215, in this Court, was upon the plea of nul tiel record; in which case, the exemplification was proper; but here it was not in issue.
    As to the motion for a special verdict, this point, whether a Court refusing to direct it, is guilty of error, is not for discussion at present. It seems admitted, that the party has a right to the Court’s opinion on the law; but what refusal is error, has not been fully settled. The Court has said, [Syme v. Butler, exr. ante, 99,] that the party may procure it by various modes. 1. By moving the Court to instruct the jury what the law of the case is. 2. By demurring to the evidence. 3. By preparing notes for a special verdict, which the Court may judge of. But if the party makes choice of one, he cannot complain that he did not have the other also; for one is as adequate for his purpose as the other.
    
      
       Assignment — Assignee of Note — Recovery—Assumpsit. — Recovery may be bad by an assignee against an assignor of nonnegotiable paper on the common count for money bad and received, in indebitatus assumpsit. Hughes v. Frum, 41 W. Va. 445, 23 S. E. Rep. 604. The court, on p. 447 of this case, said: “There being a count for money bad and received, there can be a recovery based on tbe assignmentof a chose in actioji turning out insolvent, whether there was an express or an implied undertaking to stand good for it in case of failure to collect, since it is a case where money has been paid on a consideration failing; and the law says it shall be refunded, and is thus a case of money had and received by one person, which should be repaid, and is therefore, in legal contemplation, received for the use of the party who paid it, and is recoverable und er the count for money b ad and received. Tucker’s opinion, Drane v. Scholfleld, 6 Leigh 395; opinion in Mackie v. Davis, 2 Wash. (Va.) 219; Roane, J., in McWilliams v. Smith, 1 Call 125. The case just cited from 1 Call is pointedly decisive of the question logically.” The principal case is cited in this connection in Wood v. Luttrel, 1 Call 238, 240.
      Same-Recourse to Assignor — Dáligence—Bills of Exchange. — The principal case is cited in Dunlop v. Harris, 5 Call 55. See generally, monographic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   ROANE, Judge.

At the trial of this cause, it appears, from the bill of ex-125 ceptions, that two objections *were taken to the writing obligatory, with the assignments mentioned in the declaration, being evidence proper to be submitted to the jury. 1st. Because, inasmuch, as it ought, according to law, as was alleged, to have been in the office of the' Court of Caroline, having been, as appears from the record in this case, the foundation of an action in that Court, it is to be inferred, that this was not the note mentioned in the declaration; and 2d. That it should not have been given in evidence, without proving the hand-writing of the assignors in all the intermediate assignments.

As to the first, we have only to say, that the note itself was proper to be given in evidence. How the party obtained it, was not an enquiry for the Court. As an action is given to the assignee in default of recovery against the obligor, he must have the use of the note some how, even if the action is brought in a different Court; and we ought rather to intend that it was obtained properly than illegally.

As to the second, it was decided, in Mackie’s exr. v. Davis, 2 Wash. 219, that this action was founded principally on the privity which exists between the assignor and assignee; and, therefore, the mesne endorsements were unnecessary to be proved.

Another exception was taken, in the argument, to the obligation as proper evidence, viz: on account of a variance of the assignments set out in the declaration, being stated to be for value received; whereas, these last words are wanting in the assignment themselves. To which, I answer, the expression of the declaration, for value received, is only an averment of the plaintiff, and not intended as an averment of what is contained in the assignments themselves. But, if this was not the case, this note, with its assignments, was certainly proper evidence on the general count for money had and received.

It also might have been objected, that there is a variance, in the assignments 126 given in evidence, *from those stated in the declaration as to the day in which the assignment was made .to the plaintiff. But, the last answer given to the preceding objection, would equally apply to this, if it should be deemed such a variance, as renders it improper upon the special count: As to which, it is unnecessary for me to give any opinion.

The objection made in the exceptions to the opinion of the Court, respecting the liability of the assignor, is justly abandoned since the decision of this Court in the case of Mackie’s exr. v. Davis.

But, after having moved for and obtained the opinion of the Court on that point, and having made an exception to that opinion, which would reserve to him the benefit of reviewing it before an appellate Court, the defendant, without stating any other point of law arising in the case, moved the Court to instruct the jury to find a special verdict. It does not appear that there was any other point of law in the cause which could be proper for the consideration of the jury. I say, for the consideration of the jury, because all the objections, before stated against the admissibility or competency of the evidence, were solely proper for the consideration of the Court.

As much inclined as I am to think, that' Courts should observe the maxim, that Courts shall answer to questions of law, I see no reason to extend the doctrine so far as that, when a party has chosen to appeal to the opinion of the Court in one particular form, he should, upon the same ground only, take another chance for the opinion of the same Court in another form, as it will unavoidably produce delay. If, indeed, the defendant had shewn in the bill of exceptions, that there were other points in the cause, which were proper for the decision of the Court, and not decided on by them, the objection would probably have been considerably more substantial. I am for affirming the judgment.

CARRINGTON, Judge.

Concurred.

*LYONS, Judge. The points of law were decided by the Court, under the motion to instruct the jury upon the law. It was too late to insist upon a special verdict, after having the points of law decided in another manner. The plaintiff pursued the executors of the obligor, but could obtain no satisfaction; and his own assignor was consequently liable. I think, therefore, that the judgment must be affirmed.

PENDLETON, President. Concurred.

Judgment affirmed.  