
    Lewisburg.
    M’Laughlin v. Duffield.
    (Absent Brooke, J.)
    
      D, the holder of a bond, assigns it to H, by the following endorsement thereon: “ I assign the within bond to II, and agree not to take any legal advantage of said H in the indulgence he may give.” A few days after, II assigns the bond to M, who delays to bring suit against the obligor until he becomes insolvent. Heed : D is liable on his assignment, not only to H but to M.
    
    
      Andrew Frame executed to David Given, a note dated the 5th of September 1839, and payable the 1st of February 1840, for 91 dollars 25 cents. Given assigned this note to Joseph Duffield ; and Duffield assigned it to H. O. Middleton, by the following endorsement on the note: “ 1 assign the within bond to H. O. Middleton, and agree not to take any legal advantage of said Middleton, in the indulgence he may give. June 5th, 1840.” On the 10th of the same month, Middleton assigned the note to Addison M’Laughlin.
    
    On , the 14th of June 1841, M’Laughlin instituted an action against Frame on the note, and recovered a judgment against him, on which an execution was issued, and was returned “ no effects.” M’Laughlin then brought a suit in the Circuit Court of Braxton, against Duffield as assignor of the note; and on the trial, it having been proved, that if a judgment had been recovered against Frame, at the fall term of the Court in 1840, or at the succeeding' spring term, that the money could then have been made out of him, the defendant moved the Court to instruct the jury: That if it should appear to them from the evidence, that at the time Middleton assigned the note to the plaintiff, Frame was solvent, and that the note could have been collected by the use of due diligence, and that the plaintiff did not use due diligence, in consequence of which the debt was lost, the plaintiff cannot recover against the defendant in this action, notwithstanding the terms of the assignment from the defendant to Middleton. plaintiff aiSo moved the Court to instruct the jury: ^hat in this action the plaintiff is entitled to such recovery only as his assignor Middleton is entitled to, against the defendant; and that if the jury are satisfied from the evidence, that under the terms of the assignment made by the defendant to Middleton, that Middleton would be entitled to recover against the defendant upon said assignment, that the plaintiff is entitled to all Middleton’s rights.
    The Court gave the instruction asked for by the defendant, and refused to give that asked for by the plaintiff; and the plaintiff excepted. The jury then found a verdict for the defendant, on which judgment was rendered ; and the plaintiff applied to this Court for a supersedeas, which was granted.
    
      Price, for the appellant.
    There was no counsel for the appellee.
   Cabell, P.

delivered the opinion of the Court.

The assignment of a promissory note, when made in the general or usual form, imposes on the assignee the obligation to use due diligence, in the effort to obtain payment from the maker of the note; and if, in such case, the assignee should fail to use such diligence, and the maker becomes insolvent, the assignee loses his right to resort to the assignor for payment of the note. But it is competent to the assignor, by the terms of his assignment, to exempt the assignee from the obligation to use due diligence; and when he does so, he will still be liable to the assignee, although the debt may have been lost by the failure to observe due diligence.

The Court is of opinion, that the appellee, by the terms of his assignment to Henry O. Middleton, of the note in the proceedings mentioned, did exempt the said Middleton from the obligation to use due diligence in the collection of the note from the maker, and made himself liable to the assignee, in case of the insolvency of the maker, even although it might have been recovered from the maker, if suit had been brought in a reasonable time after the assignment.

The Court is farther of opinion, that this exemption from the obligation of due diligence, was not, by the terms of the assignment, confined to the said Middleton, but extended, so far as might concern the appellee, to all subsequent assignees of the said note.

The Court is therefore of opinion, that the Court below erred in giving to the jury the instruction asked for by the appellee, and also in refusing to give that which was moved for by the appellant.

The judgment is therefore reversed with costs, and the cause is remanded for a new trial, on which, if the facts proved to the jury shall be the same as those proved on the former trial, the instruction moved for by the appellant, if again asked, shall be given, and that moved by the appellee, if again asked, shall be refused.  