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assignment. This fact does not necessarily result from the assignment. Hopkins &c. v. Richardson &c. 9 Grat. 492. But it is implied therefrom unless the contrary be shewn. If the consideration be valuable it matters not whether it be a previous debt, a present purchase or anything else. Lyons, J. and Fleming, J. in Barksdale v. Fenwick, 4 Call 505, 508; Tucker, J. in Goodall v. Stuart, 2 H. & M. 111.

Though it be shewn by the assignor that the consideration consisted merely in the assignee's parting with his property to, or discharging previous claims against, the maker or another, on the faith of the name and credit of the assignor, this consideration is sufficient to make the assignor liable for the amount of the note, if upon due prosecution of the remedy against the maker, the amount could not be made out of him; and the law implies a promise corresponding with this liabi lity. Allen v. Prior, 3 Mar. 305; Marcy &c. v. Fore, 3 B. Monroe 477; Marr v. Smith, 7 Id. 190; Hopkins &c. v. Richardson, 9 Grat. 493.

But if by an arrangement between the maker of the note and the creditor, to which the defendant was no party, (he being absent from the state,) the note was made payable to the defendant and delivered immediately to the creditor, and after the defendant's return to the state, and after the note became due, it was taken to him by the maker, endorsed by him in blank and returned to the creditor, then-though the endorsement may have been made for the purpose of securing the debt-it was an assignment without consideration, and the assignor not liable upon it, unless it was made in pursuance of a previous or present agreement, whereby forbearance of the debt was procured. Perrin v. Broadwell, 3 Dana 598.

6. How far consideration paid for the assignment is the measure of recovery against assignor.

In a case before the court of appeals of Kentucky it was stated that if the question as to the extent and terms of the liability of the assignor of a bond for land, were then an open one, to be for the first time settled, one of the members of the court would be strongly inclined to the opinion, that wherever it appeared that the substance of the transaction. between the assignee and assignor, was a purchase of the land, and not a mere purchase of the bond, for the purpose of speculating in the title, the assignor should be held responsi ble, in equity, for the entire consideration received for the land, in the event that the assignee, without fault on his part,

should be unable to coerce the title from the obligor in the bond; that if the assignor is in possession of the land, and delivers it, as well as the bond and assignment, these facts, or others equivalent to them, are sufficient, prima facie, to give character to the contract, as a sale and purchase of land, and to place the assignor's responsibility on the footing above indicated, without any other written evidence of the contract but an ordinary assignment; and that, under such circumstances, the assignee, upon failure of the title, has a right to be repaid the whole consideration, subject only to a deduction for any loss which may have been the consequence of his failure to prosecute the obligor with due diligence. Sebree's heirs v. Harper, 4 Dana 65.

But in the cases of Bedal v. Stith, 3 Mon. 290, and Tribble etc. v. Davis, 3 J. J. Mar. 636, 7, the contract has been placed on different grounds; and it is to be considered as the settled rule, applicable to cases of this kind, that, unless there be fraud in the representations of the assignor in regard to the title, or fraud or mistake in reducing the contract between him and the assignee to writing, or unless the assignor fails in his contract with the obligor, the responsibility of the assignor is limited in amount to the original consideration of the bond, and even to that extent, is dependent upon the double contingency, of the inability of the assignee, by use of the proper means, with due diligence, to coerce either the title or the original consideration money from the obligor.

If, therefore, the assignee of the title bond has a judgment. or decree against the obligors in that bond for the whole amount of their liability, and that amount is satisfied, the assignee has no right of action upon the assignment for the difference between the amount so recovered and the larger sum paid by him to the assignor; it is considered that in such case the consideration for the assignment has not failed but has, in fact, been enforced. Sebree's heirs v. Harper, 4 Dana 65.

The recovery by the assignee against the assignor being placed on the ground of a failure of consideration, the actual consideration of the assignment and its value constitute in other cases the measure of recovery. Metcalf v. Pilcher &c. 6 B. Monroe 530. It is so whether the claim against him be by his immediate assignee, or by a subsequent, claiming through the immediate, assignee; whether the instrument be passed by an assignment in full or by a blank endorsement; whether that blank endorsement be filled up as an assignment to the person with whom the assignor was in actual privity, VOL. II.-18

or filled up as an assignment to a stranger or third person. Reese v. Walton, 4 B. Monroe 511.

It results that if the consideration for the assignment was illegal or valueless the assignee can recover nothing from the assignor. Tucker v. Hall, 6 B. Monroe 460. In other cases the sum actually received by the assignor for his assignment fixes the extent of his liability when there is proof to shew what he received. In the absence of such proof it is presumed that he received an equal sum with that due upon the bond or note. Besides the sum received or the amount of the bond or note, as the case may be, the assignee also recovers against the assignor the costs of the suit against the obligor. Carrington, J. 2 Wash. 231; Fleming, J. 2 H. & M. 115; Stubbs v. Burwell, 2 H. & M. 540; Green, J. 5 Rand. 377; Tucker, P. 6 Leigh 397.

Such are the rules in the case of an ordinary sale and assignment of a bond or note. It is different in the case of an accommodation endorser, when the consideration of the endorsement is not money received by the endorser but money paid by the endorsee and received by others at whose instance and for whose use the endorsement was made. Such an endorser occupies the condition of other sureties who undertake directly for their principal, with this difference, that he undertakes to refund the endorsee his money upon the condition that he, by the exercise of due diligence, fails to collect the note from the maker. Clay v. Johnson, 6 Monroe 644; Smith v. Bacon, 3 J. J. Mar. 313; Hunt v. Armstrong's adm'r &c. 5 B. Monroe 401.

7. How contract of assignment may be modified. If the assignment be of a bond or note, on which nothing is due, how far assignor is liable.

The effect of an assignment may be modified by contract. Roane, J. in S. C. 230. Thus where a bond is disposed of, with an agreement that the party shall not be responsible, though he assign it in general terms, he will not be responsible in an ordinary case, not even to a subsequent assignee, having no notice of the agreement. Stubbs v. Burwell, 2 H. & M. 536. If, indeed, at the time of the assignment without recourse, the assignor inform the assignee that a defence of payment would be set up, but assure him that the note is unpaid except to the extent of the credits endorsed, the assignor will, in Kentucky, be held liable to the assignee if the note had in fact been paid to the assignor. Woolfolk v. McDowell, 9 Dana 270. And in Virginia, though a person

who transfers a bond, with the obligee's assignment, may state at the time that there is to be no responsibility upon or recourse against him, yet if it turn out that nothing was due on the bond, at the time it was assigned, it may be for a jury to consider the whole contract and say whether the transferree meant to take upon himself all risks, and among others that of the bond having been, at the time of the assignment, already paid off, or only take the risk of the insolvency of the obligors and of the assignor. Mays v. Callison, 6 Leigh 230.

Of course, when there is no stipulation by the assignor for exemption from responsibility, if it appear in the suit against the obligor that he had a complete defence of set-off which accrued before the assignment, and there be judgment for him on that ground, a right of action thereupon accrues for the assignee against the assignor. That the suit against the obligor was prosecuted against the obligor in another name than that of the assignee is a matter of no moment; it is enough that the suit was prosecuted with diligence, and the obligor's exemption from responsibility clearly established. Hunt v. Armstrong's adm'r &c. 5 B. Monroe 402.

8. If the obligor or maker fail to pay, under what circumstances assignee's want of diligence, or failure to sue, will not affect right of action against assignor.

When a bill or order has not been accepted, the drawees not being personally liable for its payment, the assignee thereof has no means of coercing such payment from them, and can only obtain it by their voluntary act. On such paper, if it be not negotiable, the recourse of the assignees against the assignor cannot be lost but by their neglect to obtain such voluntary payment when it was in their power to do so. Pitman v. Breckenridge &c. 3 Grat. 127.

Though the instrument have an obligor or maker who could be sued, the assignor may waive the necessity of strict legal diligence as the test of his liability before it is actually discharged. Mardis v. Tyler, 10 B. Monroe 380. He may, by the terms of his assignment, exempt from the obligation to use due diligence not only his assignee but all subsequent assigWhen such is the contract of the assignor, he will be liable to his or any subsequent assignee, although the debt may have been lost for want of diligence. McLaughlin v. Duffield, 5 Grat. 133.

nees.

Whether, in other cases, the obligation to use due diligence against the maker makes it necessary to sue him, must depend on circumstances.

or filled up as an assignment to a stranger or third person. Reese v. Walton, 4 B. Monroe 511.

It results that if the consideration for the assignment was illegal or valueless the assignee can recover nothing from the assignor. Tucker v. Hall, 6 B. Monroe 460. In other cases the sum actually received by the assignor for his assignment fixes the extent of his liability when there is proof to shew what he received. In the absence of such proof it is presumed that he received an equal sum with that due upon the bond or note. Besides the sum received or the amount of the bond or note, as the case may be, the assignee also recovers against the assignor the costs of the suit against the obligor. Carrington, J. 2 Wash. 231; Fleming, J. 2 H. & M. 115; Stubbs v. Burwell, 2 H. & M. 540; Green, J. 5 Rand. 377; Tucker, P. 6 Leigh 397.

Such are the rules in the case of an ordinary sale and assignment of a bond or note. It is different in the case of an accommodation endorser, when the consideration of the endorsement is not money received by the endorser but money paid by the endorsee and received by others at whose instance and for whose use the endorsement was made. Such an endorser occupies the condition of other sureties who undertake directly for their principal, with this difference, that he undertakes to refund the endorsee his money upon the condition that he, by the exercise of due diligence, fails to collect the note from the maker. Clay v. Johnson, 6 Monroe 644; Smith v. Bacon, 3 J. J. Mar. 313; Hunt v. Armstrong's adm'r &c. 5 B. Monroe 401.

7. How contract of assignment may be modified. If the assignment be of a bond or note, on which nothing is due, how far assignor is liable.

The effect of an assignment may be modified by contract. Roane, J. in S. C. 230. Thus where a bond is disposed of, with an agreement that the party shall not be responsible, though he assign it in general terms, he will not be responsi ble in an ordinary case, not even to a subsequent assignee, having no notice of the agreement. Stubbs v. Burwell, 2 H. & M. 536. If, indeed, at the time of the assignment without recourse, the assignor inform the assignee that a defence of payment would be set up, but assure him that the note is unpaid except to the extent of the credits endorsed, the assignor will, in Kentucky, be held liable to the assignee if the note had in fact been paid to the assignor. Woolfolk v. McDowell, 9 Dana 270. And in Virginia, though a person

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