
    Richmond.
    Withers v. Hestend.
    Covenant by A S W and R W W, to deliver to C D an assignment of 80 dollars, on a bond given by H and others to J W, for 400 dollars, which assignment shall be for the benefit of J H. The bond is dated in April 1821, and is to be delivered to C H on the 4th of next month. Witness our hands and seals this 30th of October 1822.
    The bond was assigned by J W to M, on the 24th July 1822. M on the 3d of October, assigned 322 dollars of the bond to R; and on the 25th assigned 80 dollars to A S W. On the 1st of November A S W delivered the bond to C D. Held : This was a compliance with the covenant.
    In February 1839, John Hestend instituted an action of covenant in the Circuit Court of Campbell county, against Alexander S. Withers and Robert W. Withers, which abated as to A. B. Withers by the return of the sheriff, that he was no inhabitant of the county. The action is founded on the following covenant:
    
      We oblige ourselves to deliver to Chiswell Dabney an assignment of eighty dollars, on a bond given by Harrison and others to John Ward, sr. for 400 dollars; which assignment shall be for the benefit of John Hes-tend of Albem,arle. The bond is dated ill April 1821, bearing interest from the date, and is to be delivered to G. Dabney on the 4th of next month. Witness our hands and seals this 30th October 1822.
    
      Alexander' S. Withers, § Seal.f
    
      Robert W. Withers, § Seal.*
    To this action the defendant pleaded covenants performed ; and upon the trial the plaintiff demurred to the defendant’s evidence. The jury rendered a verdict for 190 dollars, with interest on 80 dollars, from the 19th of September 1839, subject to the opinion of the Court on the demurrer to evidence; and in April 1841, the Court sustained the demurrer, and gave the plaintiff a judgment on the verdict.
    The material facts proved are as follows: The bond referred to in the covenant, was executed by Richard Harrison, Nancy Shields, Nicholas Harrison and Richard H. Buries to John Ward, sr., who, by his endorsement thereon, dated the 24th of July 1822, assigned it without naming the assignee. On the 3d of October following, M. C. Moorman, by a like endorsement, assigned 322 dollars of the bond to William Robinson; and on the 25th of the same month, he assigned 80 dollars thereof to Alexander S. Withers.
    
    On the 1st of November 1822, Alexander S. Withers delivered the bond with the assignments thereon, to Chiswell Dabney, in execution of the covenant; and Dabney brought suit upon the bond against the obligors, in the name of Ward, for the benefit of Robinson as to 322 dollars, for the use of Hestend as to 80 dollars, and for the use of Moorman as to the residue. This suit abated as to N. Harrison and Burks. A judgment was obtained against R. Harrison and Nancy Shields, and the sum of 240 dollars 85 cents was made , upon an execution which issued on the judgment, and was pa¡¿| over t0 William Robinson in part satisfaction of his claim.
    The defendant applied to this Court for a supersedeas to the judgment, which was awarded.
    
      Grattan, for the appellant.
    
      Cooke, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

The covenant of Alexander S. Withers, and Robert W. Withers the plaintiff in error, upon which this action is founded, was not a covenant to make an assignment of 80 dollars of the bond therein mentioned, but a covenant to deliver an assignment of so much of the bond, which assignment had been already made.

The bond was executed by Richard Harrison and others to John Ward, who, by his endorsement thereon, dated the 24th of July 1822, made an assignment thereof, which omitted the name of the assignee. But M. C. Moorman, who, it seems, was the intended assignee, by his endorsement on the bond, dated 3d of October 1822, assigned 322 dollars thereof to William Robinson, and by another endorsement thereon, dated the 25th of October 1822, assigned 80 dollars thereof to Alexander S. Withers.

The object of the covenant, which bears date the 30th of October 1822, appears to have been to give to Hestend, the defendant in error, the benefit of the assignment made to Alexandm' S. Withers, and that the bond should be delivered to Mr. Dabney, an attorney at law, on or before the 4th of November then next ensuing, in order that suit might be brought thereon, for the use of the persons respectively entitled to the benefit thereof.

The bond was accordingly delivered on the 1st of November 1822, by Alexander S, Withers to ilir. Dab-net/, who brought suit thereupon in the name of Ward, ^ „ c for the use of Robinson, as to 322 dollars, for the use of Hestend as to 80 dollars, and for the use of Moorman as to the residue; which suit was prosecuted to a judgment as to some of the obligors, and part of the money made by execution and paid over to Robinson towards the satisfaction of his claim.

The covenant was therefore fully performed by the delivery of the bond, with the assignment to Alexander $. Withers thereupon endorsed. That was the assignment contemplated by the covenant; and Hestend had the complete use of it in the action upon the bond. No other assignment was required by the terms or the true intent and meaning of the covenant, and none from the covenantors, or either of them, could have availed him any thing, inasmuch as he would not have been thereby enabled to maintain an action for the recovery of the 80 dollars in his own name.

If Hestend by the transfer to him, for a valuable consideration of Alexander S. Withers’ interest in the bond, and the prosecution of the action thereupon with due diligence, without being able to obtain satisfaction from the obligors, acquired a right to redress against the covenantors or either of them, his proper remedy was an action of assumpsit founded upon those circumstances, and not an action founded upon the covenant of which there has been no breach.

It therefore seems to the Court that the Circuit Court erred in sustaining, instead of overruling, the defendant in error’s demurrer to the evidence : And it is considered by the Court that the judgment of the Circuit Court be reversed with costs. And this Court proceeding to render such judgment as the Circuit Court ought to have rendered, it is further considered that the demurrer to evidence be overruled, and that there be a judgment for the plaintiff in error.  