
    Burwell Harton against Henry Scales, Admr. of John Watt.
    DECEMBER, 1823.
    Note assigned without recourse, assignor for fraudulent to solvency of waker.
    IN assumpsit by Hartón against Scales, administrator of ^att> in the County Court of Maddison County, the first count in the declaration sets out, that Walt, having in possession the receipt of W. Saunders for a Note of Thomas B. Smith and John Leaky for $500, payable to Wait by his wi’itten endorsement on the receipt, transferred the same, and his interest in the subject thereof, to the plaintiff,- for value by him received from the plaintiff; and then represented to him, that though Smith was insolvent, Leaky was solvent to satisfy the Note: that plaintiff relying on said representation accepted the transfer, &c.: that said Leakey was then and there wholly insolvent, and Wall well knew the same : that plaintiff used due and reasonable diligence to collect said sum of money of Leaky, who has failed and refused to pay the same, or any part thereof; and that the plaintiff has not been able to recover any part thereof from the maker, of which Watt had notice, &c.: by reason whereof said Watt became liable, &c. stating an assumpsit by Watt, and by his administrator.
    The second count stated the transfer to be in consideration of $500 in horses, paid by plaintiff, and the deceit and assumpsit as the first. The third and fourth counts, on indebifat ass. and quant, val. for horses sold. The defendant plead non assumpsit, and set off. On the trial the plaintiff offered evidence to prove, that at the sale of the horses and transfer of the receipt for the Note, Wait represented to plaintiff that Smith was insolvent, but that Leakey, the other maker, was solvent and able to pay the amount, when in fact he also was insolvent, and well known by Watt to •be so : that plaintiff was not acquainted with Leakey’s circumstances, and took the Note on Watt’s statement of his solvency : to this evidence the defendant objected, on the ground that the receipt and endorsement thereon referred to in the declaration, as follow : viz. “ Received of John Walt a Note on Thomas B. Smith and John Leakey, for five “ hundred dollars, executed on 22d December, 1817, and due “ one day after date : said Note I promise to put in collec“tion. January 24th 1821. W. Saunders.” On which was endorsed: “ April 3d, 1821. I assign over this receipt “ to Burwell Hartón, without recourse on me in any way. “ John Watt,” had been assigned to-the plaintiff, without recourse on the defendant in any way, which objection was sustained by the Court; to which opinion the plaintiff excepts, &c. Verdict and judgment being rendered for the defendant, the plaintiff sued out a writ of Error to this Court, and assigned the matter of the bill 0f Exceptions as Error.
   Chief Justice Lipscomb

delivered the opinion of the

The plaintiff has specially averred in his declaration, that in the incipiency of the contract Watt fraudulently stated to him that one of the makers of the Note was solvent and able to discharge it, when he well knew that both -the makers were insolvent and unable to discharge the Note, if the action had heen founded on the assignment, parol testimony ought not to have been received to contradict it: but from the nature of the charge in the declaration, evidence of the fraud clearly ought to have been admitted.

We are therefore of opinion that the Judge of the County Court erred in rejecting the testimony offered. The judgment of the County Court must be reversed, and the cause be remanded.  