
    William Lile vs. Martin O. Hopkins.
    In this state, a patty who transfers a judgment, thereby impliedly warrants that there is such a judgment, and that the defendant therein is liable to pay it.
    In error from the circuit court of Claiborne county; Hon. Stanhope Posey, judge.
    
      William Lile sued Martin O. Hopkins in assumpsit for money had and received. On the trial the plaintiff gave in evidence the following assignment:
    “ Archibald McLean v. Alexander McGilvary. In Claiborne circuit court, judgment 28th November, 1837, $936-33; vendi-tioni exponas 28th day of January, 1841.
    “ For, and in consideration of the sum of four hundred and thirty dollars and ninety-four cents, to me in hand paid by William Lile,' I hereby assign and transfer all my right in and to the judgment and execution above stated, to the said William Lile, his heirs and assigns. To be collected by the said Lile, for his own use, and in any manner he may think proper.
    “ Given under my hand and seal this second day of March, A. D. 1841. M. O. Hopkins. [Seal.]”
    The plaintiff further proved by J. B. Thrasher, that in November, 1838, R. J. Bland, then sheriff, had paid to him as attorney of McLean, $ 1011-23 in full of said judgment.
    He then read the petition of McGilvary to the circuit judgment for a supersedeas, dated April 1, 1841, the joint answer of the plaintiff and defendant, Lile and Hopkins, thereto, and the order perpetually staying further execution on said judgment. The petition states that McGilvary paid Bland 1492-80, and that Bland paid the whole amount of the judgment, which was thereby satisfied. That he was1 indebted to Bland the amount so paid for him, and has paid Hopkink, as administrator of Bland, $220, on account of the debt so due to Bland, and acknowledges his obligation to pay the balance, but objects to the use of McLean’s judgment. States that Hopkins has transferred the debt to Lile, and that Lile, instead of pursuing a legal course, or even asking for the money, has sued out an execution, &c. ,
    The defendant proved by J. B. Thrasher, that before Lile bought the judgment from Hopkins, he (Thrasher) informed him (Lile) that the money had been paid by Bland. Defendant also proved by McGilvary that he had paid Hopkins $220 on account of the payment, and had agreed to pay him the balance.
    
      The plaintiff asked the court to charge the jury, that on the sale of a chattel, the law implies a warranty that there is such a chattel. This instruction was overruled, and the court instructed the jury, “that no action will lie by the assignee of a judgment against the assignor, to recover the consideration paid, unless there is an express agreement to refund.” The jury found for the defendant, and the plaintiff sued out this writ of error.
    
      James H. Maury, for plaintiff in error,
    Insisted that the instructions were wrong as given for defend-' ant. He cited 2 Kent, Com. 468.
    
      H. T. Ellelt, for defendant in error,
    Contended that the authorities were clear, that the law raised no warranty. He cited 2 Co. Litt. 91; 1 South. N. J. R. 178 ; Robinson v. White, 4 Littell, 237; 12 Serg. & R. 165 ; Jackson v. Crawford, 14 Serg. & R. 290, same case; Jones v. Hnggeford, 3 Mete. 519; Parrish v. Parrish', 11 Leigh, R. 628; Willing v. Peters, 12 Serg. & R. 177.
    In New York it is held that there is no implied warranty, except that the instrument is not forged. 15 Johns. 240; 16 lb. 201; 19 Wend. 557; 3 Cow. 260.
   Mr. Justice Ciayton

delivered the opinion of the court.

In March, 1841, the defendant Hopkins assigned to the plain-' tiff all his right apd title to a judgment, in the Claiborne circuit court, of McLean v. McGilvary, “ to be collected by said Lile for his own use, and in any manner he might think proper.” In point of fact, the judgment had been previously paid off, and afterwards there was a perpetual supersedeas granted ‘to its enforcement. This action for money had and received was brought to recover back the amount paid for the judgment.

Upon the trial the plaintiff asked the court to charge the jury, “ that the sale of a chattel carried with it an implied warranty that there was such a chattel.” This charge the court refused to give, but instructed the jury, “that no action will lie by the assignee of a judgment against the assignor, to recover the consideration paid, unless there is an express agreement to refund.”

In both the court erred. In every sale of a chattel there is an implied warranty of its existence, and that the vendor has title to it. Story on Sales, 184, 367. So in every assignment of an instrument, even not negotiable, the assignor impliedly warrants that the instrument is valid, and the obligor liable to pay it. Howell v. Wilson, 2 Blackf. 418. In Caton v. Lenox, 5 Rand. 47, the court says, “ the law does not tolerate that any person should transfer to another a right which he has not himself” In Indiana and in Virginia, the statute law in regard to assignments is similar to our own, and the assignment is not governed by the law merchant. Bullitt v. Scribner, 1 Blackf. 14; Machir v. Davis, 2 Wash. 219; Norton v. Rose, Ib. 233.

From this principle it follows, that a party who transfers a judgment must be held to an implied warranty, that there is such judgment, and that the defendant is liable to pay it. A satisfied judgment is, in fact,' no judgment, as regards those to whom it may be transferred after its payment. If it were the intention of the parties that the assignor should not be held to such an implied warranty, that fact must be established by him. Prima facie the implication arises from the transaction, and the payment of the consideration by the assignee, and it must stand unless rebutted by proof.

The judgment must be reversed, and a new trial granted.  