
    Minnis v. Pollard.
    [Saturday, May 5th, 1798.]
    Assignment — Liability of Assignor — Due Diligence.— A. assigns to B. a debt due from G. and promises to pay the amount to B. if he does not recover it of G. “after pursuing the legal method for obtaining the same.”
    Same — Same—Same—What Constitutes. — If B. brings suit in the name of A., obtains judgment, and issues a fi. fa., which is returned no effects, it is a sufficient performance, and he is entitled to an action against A. for the money.
    Acknowledgment of Debt in Letter — Assignment —How Suit Brought. — If A. in a letter to B. acknowledges-that he owes money to C., and O. assigns this paper to D., probably no action can be maintained on it by D. in his own name, against A., but he must bring suit in the name of C.
    In an action upon the case, brought by Pollard against Minnis, the declaration contained three counts. 1st. Por money laid out and expended. 2d. Por money lent. 3d. A special count, which stated that a certain Thomas Carter was indebted to the defendant in 1481. military certificates, by virtue of an instrument of writing, in the words following, viz: “Mr. John Carter,- — Dear brother, you’ll receive by Major Minnis a power of attorney to recover my five years full pay; as I stand indebted to him 1481. military certificates, with interest from the year 1784, I request you will discharge it out of those certificates obtained by you. On my return home, will furnish you with an account against the Major, which j'ou must deduct. —I am, Dr. brother, your’s &c.
    Tho’s Carter.
    Jan. 8, 1791.”
    “Received the above-mentioned power of attorney, and should I receive the certificates from the Auditor’s office, the above order shall be complied with.
    J. Carter, Jun.
    Peb. 3, 1791.”
    ‘Richmond, June 20, 1791. I do hereby assign the within contents to Robert Pollard, for value received, and do-by these presents bind myself, my heirs, &c. to pay to the said Pollard, or to his assigns the certificates within mentioned, with legal interest thereon, from the first day of January, 1784, if he does not recover the same fronr doctor Thomas Carter, after pursuing the legal method for obtaining the same. Witness my hand the date above. C. Minnis.”
    The declaration then states, that the plaintiff has not been able to obtain the certificates from Carter, although he has used due diligence, and pursued the legal method to obtain the same. In consideration whereof, the defendant became indebted to the plaintiff in 2001. ; and being so indebted, promised to pay, &c. After which, follows a general assignment of breaches of the promises laid in the declaration. Plea, non assumpsit, and issue. Upon the trial of the cause, the defendant filed a bill of exceptions to the Court’s opinion; which stated, that the plaintiff offered in evidence to the jury, a record of a suit in Brunswick County Court, wherein Minnis was plaintiff, and Thomas Carter defendant, commenced upon the 9th day of April, 1792; and, the declaration in which, contained three counts. 1st. Por military certificates sold and delivered. 2d. A quantum valebat for military certificates sold and delivered. 3d. ■ Por money had and received. The plea was non assumpsit, and there was a verdict and judgment for the plaintiff for 1731.- 3s. - and costs. Upon which, a writ of fieri facias was issued and was returned ‘no effects.’ There is, in the said record, a copy of the before-mentioned writing from T. Carter to John Carter, and of the endorsements mentioned in the declaration: To which is annexed, a certificate of the Clerk of the Court, that the same were read on the trial. To the introduction of which evidence the defendant objected; but the objection was overruled by the Court. The defendant likewise demurred to the same evidence; with the 228 addition, that there was ^verbal testimony to prove that Thomas Carter was generally reputed insolvent from January, 1791. The jury found a verdict for the plaintiff for 1881. 3s. 6d. damages, if the evidence is sufficient to support the plaintiff’s action; if otherwise, for the defendant. The County Court gave judgment for the plaintiff; the' District Court affirmed that judgment; and, from the judgment of affirmance, Minnis appealed to this Court.
    Washington, for the appellant.
    The evidence was inadmissible,.as it did not support the allegations of the declaration ; which aver, that suit was brought by Pollard: . whereas, the evidence produced, was the record of a .suit between Minnis and Carter, and not between Pollard and Carter. So, that there was a plain variance between the declaration, and the evidence offered to support it, which is sufficient to reverse the judgment.
    But, upon the demurrer, the judgment is certainly erroneous. It was a special contract, the condition of which was, that Pollard should pursue the legal method for recovering the demand against Carter; and, the declaration avers performance. The plaintiff, therefore, should have proved it. But, he has not; for, he has not shewn that he brought any suit: Which was a condition precedent, and without performing it, he could not maintain the action. In Mackie v. Davis, 2 Wash. 219, in this Court, it was held, that the assignee must sue the obligor, before he can resort to the assignor; upon the implied condition, that he undertook to do so. But, this case is stronger ; for, here nothing was left to implication; but, the assignee expressly undertook to do it, and, therefore, was bound to perform his promise. Sensible of ■this, he has averred it; but, his evidence does not support the averment. Ror, the record produced was a suit between other parties.- It may perhaps be sáid, that Pollard could not have brought a suit. But, whether he could or not, will make no difference. Because, he undertook to 229 do so; and, he *was under a necessity of fulfilling that undertaking, before he could sue the assignor. None of the evidence applies to the money counts; and, therefore, upon those the judgment cannot be sustained.
    Call, contra.
    The bill of exceptions does not state, that it was all the evidence in the cause, and there might have been evidence, under the special counts, to shew that the suit, though brought in the name of Minnis, w¡as really for the benefit of Pollard, and that it was commenced by his direction. Which was a thing that lay in averment, and might have been proved by matter de hors the record.
    Pollard could not have brought suit in his own name; for, the paper being only a private letter between Doctor Carter and his_ brother, was not a note in writing or obligation to pay to Minnis, although perhaps he might have used it collaterally, in support of his original demand. Neither was it negotiable on the ground of its being an order to pay; for, it has not any marks of privity and confidence between Minnis and Carter; and, at all events, it is payable out of a particular fund, and that fund contingent and uncertain. The inference, therefore, is, that Minnis by assigning it, has agreed to lend his name to Pollard to bring suit against Carter; and, consequently, bringing suit in the name of Minnis, was not only allowable, but all that Pollard could do. Again, the object of a suit was only to ascertain whether the money could be made out of Carter or not; and, that object was as well attained by a suit in the name of Minnis, as of Pollard. Besides, the demurrer admits the insolvency of Carter, at the time of the assignment; and, therefore, it was wholly unimportant whether suit was brought or not, as the situation of Minnis could not be altered.
    But, this argument, that Pollard brought no suit, proves too much : because, it brings ■the appellant to this dilemma, that he brought the suit himself, and, therefore, has dispensed with the obligation, 230 *on the part of Pollard, to do it. And, having dispensed with it, he can never be received to say that it was not done. But, there is a , circumstance which clearly proves, that the suit was brought for the benefit of Pollard. For, the record of Brunswick Court shews, that the paper and endorsements were filed and used, as exhibits in the trial of that cause; and, the defendant by demurring, has admitted that they were the foundation of that action. For, the demurrer admits every thing which the jury might have inferred from the circumstances. Buller’s N. P. 313. It, therefore, admits the promise to pay; that Pollard had used the necessary process; and, that Carter was insolvent. But, the assignment for value received, was proper evidence on the money counts; and, if Carter was insolvent, then on application to him for the money, and not receiving payment, Pollard had a right to consider the assignment as useless, and to resort to Minnis for his original demand. [Stedman v. Gooch,] Esp. Rep. 5-6.
    Washington, in reply.
    The doctrine of demurrers, is carried too far by the appellee’s counsel. The demurrer only admits such things as the jury might have inferred from the evidence produced. Stephens v. White, 2 Wash. [203,] in this Court. For, if all the evidence is stated, and yet that evidence does not prove the charge, the presumption is, that the party cannot prove it. Or, else you must suppose that the jury can presume legal evidence, which would be preposterous. It does not necessarily follow, from the record of Brunswick Court, that the suit there, was for the benefit of Pollard. At least, he should have shewn upon the trial, that he had it instituted, and paid the costs. But, having shewn none of these things, and the record being only between Minnis and Carter, the plaintiff has not proved performance of the condition ; and, therefore, can’t recover. It was said, the whole evidence is not stated; but, if that be true, the plaintiff should have refused to join in the demurrer. There was no proof of a loan or of money laid out; and, 231 ^therefore, the plaintiff could not recover on the money counts.
    
      
      The principal case is cited in Dunlop v. Harris, 5. Call 55 ; Wood v. Lultrel, 1 Call 240.
      See generally, monographic note on "Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.
    
   PENDLETON, President,

delivered the resolution of the Court as follows:

On the 20th of June, 1791, Minnis, for value received, assigns to Pollard, an order of Thomas Carter upon John Carter, for some military certificates, and binds himself to pay the certificates, with interest from the 1st January, 1791, if Pollard does not recover them from Thomas Carter, after pursuing the legal method for obtaining the same.

In April, 1792, a suit is brought in the name of Minnis against Carter, founded on these papers, and claiming the value of the certificates. Judgment is obtained, and execution issued in April, 1793, which is returned, no effects. And, in October, 1793, Pollard brings this suit upon the assignment, and adds two general counts. Upon the trial, he gives the former record in evidence, to shew he had pursued the legal method for obtaining the money from Carter, with the auxiliary parol proof that Carter was deemed insolvent from January, 1791, the commencement of the transaction.

It is objected, that the suit against Carter does not appear to have been for the same thing. But this objection is made in the very teeth of the record, which shews it to be the same.

Another objection was, that the suit being in the name of Minnis, it does not appear to have been pursued by Pollard, as his engagement required. But the answer is, that it was probably the only legal method which could have been pursued by Pollard: And, by whomsoever the suit was prosecuted, the essential purpose was obtained by it, namely, that of discovering whether the money could have been recovered of Carter.

The judgment is therefore affirmed.  