
    [Chambersburg,
    November 1, 1824.]
    JACKSON against CRAWFORD.
    IN ERROR.
    The assignment of a judgment, in the absence of express warranty or fraud, gives rise to no implied assumption on the part of the assignor.
    Error to Huntingdon county, in an action brought by John Crawford, the defendant in error, against the plaintiff in error, William Jackson, upon an alleged assumption by him to pay a debt due to Crawford by one John Beatty. The circumstances of the case, were shortly these: — Jackson being indebted on certain bonds to Beatty, and Beatty being indebted to Crawford, an arrangement took place between them, by which Jackson was to assign to Crawford a judgment which he had obtained against one Ger-sham Lambert, and to have credit to the amount of the judgment, on the bonds given bj*- him to Beatty. The judgment, whieh was obtained on the 15th of August, 1S18, with a stay of execution until the 1st of April, 1819, was accordingly, on the 14th of April, 1819, marked to the use of Crawford, by Jackson, upon which one of his bonds held by Beatty was delivered up to him, and a receipt endorsed on another bond for the balance of the judgment. It turned out, that Lambert was insolvent, and had conveyed his real estate to his children at the time the judgment was obtained against him. Upon this judgment a fieri facias issued on the 22d of December, 1819; but, in the meantime, other executions had issued against him, under which his personal property was levied on and sold.
    
      Lambert, who was examined as a witness on the part of the defendant, swore, that about the time the money was due on the judgment, he informed Jackson that he could pay him, in Hunt-ingdon money, according to their agreement. Jackson said it was to be paid to Beatty, who on being called upon said, that the money was coming from him to Crawford. In a few days afterwards, Lambert mentioned the subject to Crawford, who said he did not want the money, and agreed to take security for its payment in one year. He afterwards brought to Crawford a person as security, and found that the assignment had been made the day before. Nothing more was said to him on the subject for nine months.
    When the evidence was closed, the court was requested to instruct the jury on the following points:
    1. That there being no express guarantee in the assignment, or by parol, and there being no allegation of fraud in the case, the defendant cannot be liable, under the idea of an implied guarantee or assumpsit.
    
      
      2. That the assignment of the judgment, being of the plaintiff’s Own seeking, and he having made his own arrangement with Ger-sham Lambert, the plaintiff took the assignment at his own risk.
    3. That the neglect of the assignee to take out execution until December, 1S19, eight months after the assignment, is laches on his part; and if William Jackson was liable, at the date of the assignment to refund to the assignee, in ease the money could not be recovered from Lambert, he is discharged from such liability by the neglect.
    4. That the conversations of Craioford with Lambert, respecting the Huntingdon money, being had before the assignment of the judgment, and the subsequent delay after the assignment to take out execution, are evidence that Crawford intended to take the judgment at his own risk.
    5. That if, from the evidence, the jury are of opinion that the terms of payment of the judgment have been varied by the as-signee, the plaintiff cannot recover.
    To these points, the Presiding Judge (HustoN) answered thus:
    
      i( 1. I do not see what is meant by this position, or how it applies, or how the answer of the court is intended to be applied:— Cases have been read to show the legal effect of the word “ assign.” No such word is used, and the technical or magical effect of that word, can have no effect on this cause.
    “ The liability of the defendant does not depend on the words transferring this judgment, taken alone; nor on the parol evidence alone, but on both together, and when part is written and part pa-rol, this latter draws all to the jury, who must judge from the whole transaction, and not from any part of it. Generally, where a note, bond, or judgment is transferred, the liability of the endorser, assignor, or person assigning the judgment, is to be decided from the law, where no special agreement, or from the special agreement of the parties. If given to pay a pre-existing debt, such transfer is not a payment, and does not discharge the debtor, unless the person receiving such security is guilty of laches, or unless there is an express agreement to accept such transfer as an absolute discharge and satisfaction of the debt.
    “ 2. Whether this was as supposed, or what was the agreement of the parties, is a matter of fact for the jury.
    
      (e 3. Even in the case of application for the payment of a note endorsed, and of notice to the endorser, what is reasonable diligence, a reasonable time or otherwise, is lately decided by our Supreme Court to be a question for the jury, and not the court. The rules and practice in such a case, are at least as certain and definite as in the case of a bond or judgment. We cannot, then, take this from the jury. There may be such delayas to discharge Jackson; but whether the delay, in this case, under all the circumstances, will have or ought to have that effect, is a matter to be decided by the jury.
    
      
      “ 4. This is a question of fact, and not of law.
    
      “ 5. This is true. If Crawford, by any agreement with Lambert, gave him time; agreed not to issue execution for a specified time, then he has discharged Jackson
    
    To the instructions specially given to the jury, on the points submitted, the court added the following
    Chakge. “ Much has been introduced into this cause, not very applicable to the. matter trying.
    
      “ A transfer of a bond, note, or judgment, is not payment of a pre-existing debt, unless expressly agreed to be given or accepted as such.
    
      “ But it may become so. He who receives the bond, note, or judgment, must use diligence to obtain the money from the obligor, maker, or defendant in the judgment.
    “ The diligence to be used, may be different in different cases. We have nothing to do with any but the cause trying, — that of a judgment assigned. If Crawford, after taking an assignment of this judgment, gave time to Lambert, by agreeing with him to wait, or if he delayed to issue an execution an unreasonable time, he, and not Jackson, must bear the loss.
    
      “ If this debt was lost, or part of it lost, by the delay or negligence of John Crawford, lié must bear the loss.
    “ If it was good for nothing when assigned, Jackson has not paid his debt to Crawford, and must pay it yet; that is, unless you find an express agreement between them, that Crawford should receive the transfer of this judgment in full discharge of his debt from Beatty.
    
      Shippen and Smith, for the plaintiff in error.
    
      Thompson and Jlllison, contra.
   The opinion of the court was delivered by

Gibson, J.

The direction of the judge was right on all the points but one; and to that one, I will restrict the few remarks that are neces- . sary to explain the ground on which the judgment is to be reversed. Lambert was indebted to Jackson, Jackson to Beat if, and Beatty to Crawford. With a view of paying Jackson’s debt to Beatty, and Beatly’s debt to Cratvford by one operation, the parties agreed to an arrangement, pursuant to which, a judgment which Jackson had obtained against Lambert, was marked to the use of Crawford, and at the same time one of the bonds which Beatty had obtained against Jackson, was delivered up, and a receipt endorsed on another for the excess. Between Jackson and Crawford, there was no other privity whatever, than what arose from the naked circumstance of marking the judgment to Crawford’s use. Lambert either was insolvent at the time or became so afterwards; and the counsel of the defendant requested the judge to charge, that in the absence of fraud and of a warranty by Jackson, the law would not imply a promise on his part. The judge declined to do so, on the .ground, that the question was mixed of law and fact; but said, that generally, where a note, bond, or judgment is transferred, the liability of the endorser or assignor is to be decided by the law, where there is no special agreement; that the transfer is not payment of a pre-existing debt, and does not discharge the debtor, unless the person receiving the security is guilty of laches, or there is an express agreement to accept it in satisfaction at all events. This would be an accurate exposition of the law, in a controversy between Crawford and Beatty; but the judge, in conclusion, said, that if the judgment was good for nothing when it was assigned, then Jackson had not paid his debt to Crawford, and that he would have to pay it still, unless the jury should find an express agreement by Crawford to accept of the transfer as an unqualified satisfaction of his debt from Beatty. Now, this was putting Jacté-son precisely in the place of Beatty, and rendering him liable for Beatty’s debt, without a spark of evidence of his having agreed to become so. Nothing is more clear, than that this equitable assignment, without fraud or an express warranty, did not render Jackson liable on the contract of assignment, notwithstanding it may have been no discharge of his debt to Beatty. But the judge assumed the existence of a debt from Jackson to Crawford, on the ground, it would seem, of a promise arising by implication of law, out of the contract of assignment; whereas Crawford could have recourse to no one but Beatty, and that too, not on the contract of assignment, but for his original debt, which might, under circumstances, still be considered as owing, by reason of the failure of the means of payment, which had been put into his hands to discharge it; and Beatty might, on the same grounds, afterwards have recourse to Jackson. This would unquestionably have been the order of liability between the parties, if the judgment had been assigned by Jackson to Beatty, and by Beatty to Crawford, in payment of their respective debts, instead of having been assigned to Crawford in the first instance. But it is not the less assigned in discharge of the debt to Beatty, in consequence of its having been assigned to a person designated by Beatty. The error, therefore, arose from a supposition that the assignment was in payment by Jackson of Beatty’s debt, and that such a payment would naturally be made only on the footing of an assumption of that debt; whereas it is evident, from the very nature of the transaction, that Jackson made the transfer in payment of his own debt, without intending to entangle himself in the liability of Beatty to Crawford. In the absence, then, of an express guarantee of the judgment to Crawford, his liability on original grounds alone could be set up against him, and consequently only by Beatty. If, however, the debt from Lambert, was lost by the fault of Crawford, he would be precluded from having recourse to any one, and the liability of all parties would be discharged; and this part of the case was submitted to the jury on its true grounds; but, on the other point, I am of opinion .there is error in putting the case to the jury, on the ground of an indebtedness from the defendant to the plaintiff.

Judgment reversed, and a venire/acias de novo, awarded.  