
    Harrison’s Administrator v. Raines’s Administratrix.
    Decided, March 5th, 1818.
    I. Judgment on Assigned Bond-Execution Nulla Bona —Rights of Assignee against Assignor. — The as-signee of a bond may recover of the assignor, after suing the obligor, and obtaining a judgment and execution with a return of nulla bona; notwithstanding his attorney directed that appearance bail be not retiuired of the obligor.
    See Goodall v. Stuart, 8H. & M. 105.
    
      On a trial of an action of Assumpsit in the Petersburg District Court, in behalf of the administratrix of the assignee of a bond, against the assignor, on the ground that the assignee had sued ,the obligor, obtained judgment, and issued execution, on which there was a return of “no effects;” the plaintiff on her part offered in evidence a record of the action so prosecuted by Allen Eaines, her intestate, in his lifetime; whereupon, the counsel for the defendant moved the Court to instruct the Jury, that the plaintiff, in that action, had not used due diligence to recover the claim from the obligor; “in this,” that he did not hold him to appearance bail upon the said writ, which he ought to have done in order to maintain the present action ; and that the plaintiff, not having so held the said obligor to bail on the said action, therefore could not now maintain this action against the assignor of the said bond.” The Court, being divided in opinion, refused to give any such instruction to the Jury; whereupon the defendant filed a Bill of Exceptions.
    *Verdict and Judgment for the plaintiff; from which the defendant appealed.
    
      
       Judgment on Assigned Bond— Execution Nsilla Bonn— Rights of Assignee against Assignor. — When assignees have recovered judgment on an assigned bond, and sued execution against the obligor, and that execution is returned nulla bona, they are entitled to recourse against the assignors; and it is no defense for the assignors to show neglect or malfeasance in the sheriff: the assignors as parties injured may sue the sheriff tor such misconduct; the assignees are not bound to sue him, before they have recourse against uie assignors, upon the contract of assignment. Smith v. Triplett, 4 Leigh 590, 600, citing principal case.
      To the point that, where there is a judgment for the assignees of an assigned bond, and an execution issued thereon, a return of nulla bona fixes the liability of the assignor, though proceedings might be had against the bail, the principal case is cited in Caton v. Lenox, 5 Rand. 48; andinTuleyy. Barton. 70 Va. 398, the principal case is cited to the point that an assignee is not required to pursue, much less exhaust, collateral remedies beiore he can go against his assignor.
      See further, monographic note on “Assignments" appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
    
      
       Note. Theplaintifi’s attorney endorsed on the Writ, ttiat “no bail was required of the defendant.” —'Note in Original .Edition.
    
   The cause was submitted without argument; and, on ihe Sth of March, 1817, the President pronounced the Court’s opinion., that the judgment be affirmed.  