
    Da Costa against Shrewsbury.
    The assignee of a bond, takes it subject to all the equity and rules of lay to which it would have been liable in the hands of the obligee, notwithstanding the obligor promised to pay it at the time of assignment.
    No such promise of payment to the assignee, who is not a parly to the suit, shall be given, in evidence, though be tie the realidain»-t lit'.
    
    THE bond in this case was given by the defendant to Da Costa, for a tract of land, which was, at the time of sale, under mortgage to Commodore Gillon, for a sum equal, or nearly so, to its full value ; but Da Costa did not inform the defendant of this circumstance at the time the deeds were executed, or at any time during the negotiation-. Da Costa being indebted to M'Whann, the real plaintiff in this cause, afterwards passed away this bond in pavment to him ; but, previous to the passing of the bond, M'Whann sent to the defendant, Shrewsbury, to know if he had any discounts against it, or any objections to the bond being assigned over. He sent word, for answer, that the bond was justly due, and begged that he (MWhann) would take it out in work, the defendant being a carpenter. Upon which, 3fiWhann took an assignment of the bond, and gave Da Costa credit accordingly. Soon after, however, the defendant discovered that the land, for which he gave his bond, was under mortgage to the amount of its value, and that the nominal plaintiff, Da Costa, could not take it up. He thereupon refused to pay the bond, and M'-Whann accordingly commenced this action, in the name of Da Costa, for the recovery of it. On behalf of the holder, MWhann,
    
    
      Pringle contended,
    that M’Whann, the real plaintiff in the action, was a fair purchaser, for a good and valuable consideration ; and there was a promise of payment, or acknowledgment of the justice of the debt when the bond was transferred, which was M’Whann’s inducement for taking the bond. To support this promise, the plaintiff offered to produce evidence ; but this being objected to by Rutledge, for defendant,
    
      The Court refused to allow any evidence to be given of a promise made to one -coho teas not a party to the suit. It was, therefore, then contended, by
    Pringle, that there was a deception on the part of the defendant, by his holding out false colours to the present holder of the bond, which induced him to receive it in payment, and afterwards in refusing to pay it. At any ráte, if there was no intentional fraud, there was that neglect or omission on his part, which ought to make him liable ; because he might have informed himself of the mortgage, by searching the records in the proper office. If he had done so, the assignee of the bond would not have been imposed upon, by taking the assignment of it in payment.
   Per tot. Cur,

(present, the Chief Justice, and Judges Burke and Bat.)

The plaintiff ought not to recover in this action. The law is clear, that every person who takes an assignment of a bond, must take it subject to all the equity and rules of law, to which it would have been liable and subject, in the hands of the obligee. The promise of payment to the assignee, (if any evidence of it had been permitted to have been given,) would not have altered the case. It could not have been of so high a nature, being only parol, as the deed under seal, to the obligee ; which being given to secure a valuable purchase, and the consideration failing, the deed itself failed with it. Besides, the present action was not founded on the defendant’s promise to M’lVhann, but on the bond given to Da Costa: he therefore, does not come in under his own right, but in right of Da Costa, as assignee. That being the case, therefore, he can have no greater right than Da Costa had — -and his right failing, there ought not to be a recovery in the present case. Loft. 319. Fern. 428. 1 Bac. 157. 
      
       No B. Since the determination of the above case, an act of the legislature of this state has enabled the assignee of a bond or note, &c. to bring an action in his own name ; subject, however, to all the rules of equity, See, a& if it had remained in the hands of the original obligee.
     