
    *(April Term, 1810, continued from p. 338.)
    
    Mayo v. Giles’s Administrator.
    Thursday, March 29, 1810.
    i. Bonds — Assignment—Assignee Takes Subject to What Equities. — Although the assignee of a bond, with, or without notice, takes it subject to all the equity of the obligor, yet such equity must be clearly and manifestly established by proof, before it shall affect an assignee without notice; especially, if the obligor, after the assignment, promises payment of the full amount of the bond to the assignee. ***See also, on the subject of assignments, Buckner v. Smith, &c., 1 Wash. 299, and Hoomes v. Smock, Ibid. 389.
    In the month of May, 1793, John Mayo obtained an injunction from the County Court of Henrico, to stay proceedings on a judgment rendered against him in favour of Knowles Giles, assignee of Eortunatus Sydnor; setting forth in his bill, that in the year • — — a certain Erancis Gaddy, then of the city of Richmond, had an account against the complainant for blacksmith’s work; that he the complainant was told at several times by Eortunatus Sydnor that Gaddy was indebted to him, and had instructed him to apply to the complainant for payment; that, not suspecting any fraud, he gave his bond to him the said Sydnor for 841. 7s. lid., being the sum then supposed due from the complainant to the said Gaddy, without making any deduction on account of an engagement of his to a certain John Swann for the payment of a sum of money due from Gaddy to Swann, the amount of which was then uncertain, and also the value of eleven muskets which had been delivered by the complainant to the said Gaddy to clean, and had never been returned; the aggregate amount of which said two articles was to be deducted from the said bond, when the precise sum could be ascertained. In support of this allegation, a written agreement by the said Sydnor, bearing even date with the bond, was exhibited.
    The bill further stated that Sydnor, soon after, assigned the bond to Giles; that, “at the time of making the said assignment, the said Giles knew the circumstances under which the said bond was granted;” that Gaddy refused to grant the complainant an acquittance, (alleging that he had never authorized Sydnor to receive the debt,) and forbade him to pay any part of the said bond; that, nevertheless, Giles the assignee had brought suit, and recovered a judgment at law.
    To this bill Sydnor and Giles were both made defendants, but no process appears to have issued against the former, and no answer by him was filed. The latter by 534 his answer declared himself *a bona fide purchaser of the bond, for a valuable consideration, “expressly denying that, at the time the said bond was assigned to him, or at any time before, he knew of any dispute or fraud being practised by which the complainant was induced or drawn in to execute the said bond.” He contended, therefore, that, having the legal right to the debt, and equal equity with the complainant, a court of equity ought not to deprive him of the benefit of his judgment at law.
    The testimony in support of the bill consisted, 1. Of Sydnor’s written agreement dated the 8th of October, 1790, in the following words: “Having this day received Colonel John Mayo’s bond, on account of Erancis Gaddy, for 841. 7s. lid. and there being some doubts with Mr. Mayo whether he owes Mr. Gaddy that sum or not, I therefore hereby oblige myself, provided Mr. Mayo, in one month after this date, should produce proper vouchers to satisfy me that he has and is obliged to pay John Swann 131. 15s. on account of Mr. Gaddy, independent to an order drawn in favour of John Swann on Mr. Mayo by Mr. Gaddy, and provided Mr. Gaddy should not within one month after date produce to Mr. Mayo eleven muskets which were delivered him to clean, that the price of the said muskets and the 131. 15s. shall be fixed to the credit of this bond executed by Mr. Mayo agreeable to the award of Mr. John Hicks, William Booker, William Foushee, and Joseph Higbee. Witness, my hand, F. Sydnor.” 2. A letter from Sydnor, dated the 9th of .March, 1791, mentioning that necessity had compelled him to pass the bond to Giles; which he hoped the complainant would not be displeased at; that Giles had promised, “if the complainant would fix him upon a certainty of receiving one half the money in a short time, he would wait nine, or perhaps twelve months for the balance;” that should the complainant, on making particular inquiry, find the bond was given for rather too large a sum, the strictest honour should guide him (Sydnor) to fix the over-plus in his hands to discharge it, as he conceived it not worth while to alter the bond for so small a sum, as perhaps the complainant could rely on his punctuality; and that he “hoped he would accommodate the matter as above proposed. ” 3. A deposition of a certain Samuel Jones, proving a verbal declaration by Sydnor, “that he had long been at a loss what to do respecting a bond he had obtained of Colonel Mayo, and passed to Knowles Giles, who had then sued on said bond, which would probably 535 be carried to a Court *of Chancery, where he the said Sydnor might be placed in a disagreeable predicament, as ■Gaddy had cancelled the bargain by which he obtained the bond;” that he had previously contracted with Gaddy for the sale of part of a lot in the City of Richmond, and that by selling the same ground to the said Jones, he should “destroy the foundation of his claim against Gaddy, which had been his justification in the receipt of said bond ; but, as ne should never be able to get any thing out of Gaddy, he had determined to sell, and execute a deed for, the ground, to Jones; which he proceeded to do.”
    On the other side, the deposition of Alexander King proved a promise by Mayo, (when applied to, by the deponent, on behalf of Giles, for payment of the bond,) that he would pay “the amount of the bond to Giles.” The judgment at law was by confession; and, “by consent of the parties, fourteen days' were allowed the complainant to file his bill of injunction in the Clerk’s office.”
    In August, 1793, a motion to dissolve the injunction was overruled; and in November, 1796, Giles having died, the suit was revived against his administrator. May' 8th, 1800, the cause came on, by consent of parties, to be heard in chief, when the injunction was dissolved, and the bill dismissed with costs. On an appeal to the Superior Court of Chancery, this decree was affirmed by the late Chancellor, Wythe; and thereupon Mayo appealed to this Court.
    April 21st, 1810.
    
      
      The succeeding nine cases of April Term, by a mistake of the printer, were not inserted in their proper place; but as the reader will find them by the index as easily as if this accident had not happened, it is hoped that no inconvénience will result. —Note in Original Edition.
    
    
      
      Bonds — Assignment,—See foot-note to Norton v. Rose, 2 Wash. 233; monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; mono-graphic note on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   The Judges delivered their opinions.

JUDGE TUCKER,

(after stating the case.) The original agreement between Mayo and Sydnor, referred to in the bill, whereby it was stipulated that, if Gaddy did not within one month produce the eleven muskets delivered him to clean, that Mayo should have credit for their value, is an admission on the part of Sydnor that Mayo should not be driven to his action to obtain compensation for them, if not delivered, but that the value thereof should be admitted as an equitable discount, or set-off against the bond. I call it an equitable discount, because I do not know in what manner he could have had the benefit of it at law; the value of the muskets not being ascertained in the agreement. And indeed, the parties seem to have ad-536 mitted this, the one *by confessing a judgment on the bond, and the other by consenting that the former should be allowed fourteen days to file his bill of injunction in the Clerk’s office. But, were it not so, the circumstances of fraud and imposition, charged in the bill, in my opinion, are amply sufficient to give jurisdiction to the Court ot Chancery, in this case: nor could a demurrer, for want of equity, hold.

As to the merits. In the case of Norton v. Rose, (1 Wash. 233,) it was the unanimous opinion of the Court, (in the absence of Judge Pendleton and Judge Fleming,) that an assignee of a bond or obligation takes the same subject to all the equity of the obligor; and this, as I understand the Judges, whether the assignee at the time of the assignment have notice of such equity, or not. The question appears to have been fully discussed both by the bar, and by the bench, and therefore ought not now to be disturbed. But I am so far from feeling a disposition to do so, that I accord entirely with the opinions thus delivered. The only question, then, is, has the appellant brought his case within the rule there laid down? Erom the agreement, as before stated, and a letter of March 9, 1791, from Sydnor to Mayo, and the deposition of Samuel Jones, I am very much disposed to believe that Mr. Mayo was probably entitled to the relief he seeks.

But the whole, taken together, does not in my opinion support the allegations of his bill. Why no process was ever issued against Sydnor, to compel him to answer the charges against him; or why Gaddy was neither made a party, nor a witness in the causes, it is impossible for this Court to discover. While I feel from the evidence before me a strong suspicion that other and better evidence might have been adduced, in support of the bill, I am constrained to say that the appellant has not proved his case, as alleged in the bill, or as it appears probable from some parts of Samuel Jones’s deposition. I therefore think the decree must be affirmed. But I conceive it ought to be, without prejudice to any future bill against Sydnor which he may be advised to bring for relief on this subject. It would indeed be my wish only to affirm so much of the decree as dissolves the injunction, and allows the appellee to take the benefit of his judgment at law, and remand the cause for further proceedings, if the plaintiff should be so advised. But I doubt the power of this Court to make such a decree where the cause, with all its imper-537 fections, *on the part of the plaintiff, upon its head, after being in Court full seven years, was brought on by consent of parties, to be heard in chief upon the bill, answer, exhibits and depositions, in this record.

In the opinion I have given I mean not, in the most distant manner, to disturb or weaken the principles established in the case of Norton v. Rose, in which I most heartily concur.

JUDGE ROANE concurred in affirming the decree.

JUDGE EEEMING

was of the same opinion ; observing, that, whatever equity Mayo might have against Sydnor, he-had none against Giles, who was a fair purchaser of the bond, and to whom Mayo had made a promise of payment.

Decree unanimously affirmed.  