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 as signment 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

ere were at the date of the assignment cement of the term, and but 27 for or judgment at that term. Process ese days, leaving only 4, or at and it was not served within dgment at the first term

ere was judgment at the was returned nulla bona, the inst the assignor. Bays v. Pat

as been repeatedly said, is required to diligence, nor indeed extraordinary dilithat measure of diligence which a prudent e expected to use in the case, if he were solely It cannot be said that the delay of a few days, still ample time, upon all reasonable calculation, for service of process, would evince either a disposition not to obtain a judgment at the first term, or a want of ordinary prudence in taking the steps requisite for that object. MeMurray v. Wood, 9 Dana 46. Reasonable diligence was used by an assignee, who commenced his suit more than 40 days before the commencement of the first term after the maturity of the note. Latham v. Western, 8 B. Monroe 299.

When the assignment is accompanied by an agreement, or directions on the part of the assignor, that before resorting to coercion the assignee shall try the effect of repeated solicitations for the money, the legal rule of strict diligence cannot with justice be applied, either in determining the length of time after the assignment, within which the process of law shall be resorted to, or the energy and rapidity with which the personal demands shall be made on the debtor. Hume v. Brown, 3 Dana 450.

Although the note, in respect to which there was such agreement, was suable before a justice, and was assigned the 30th of December 1833, yet there having been application to the debtor on the day of the assignment, or within two days after, and the suit having been delayed for the purpose of making farther solicitation for the money and with a reasonable expectation that by further urgent solicitation it might be obtained, and such further solicitation having in fact been made, the delay to issue legal process until the 23d of January 1834, was not unreasonable unless the assignee, in the mean time, had good reason to suppose that by such delay, the debt might be lost. S. C.

There is no necessity for a suit, if the case be one in which no injury is done to the assignor by the failure to sue; as where the assignors have no right to require of the maker to pay the note on which the assignors were sued. Such was the case where that note was given in exchange for a note of the same date and amount which they had executed to the maker of the other; and had not paid. Caton &c. v. Lenox &c. 5 Rand. 331.

Nor is it necessary to sue a maker who, when the assignee could have sued him, had been discharged under a bankrupt or insolvent law, or was in fact insolvent; so that a suit against him would be wholly unavailing. Roane, J. in Barksdale v. Fenwick, 4 Call 503; Taylor, Ch. in Saunders v. Marshall &c. 4 H. & M. 455; Brown v. Ross, 6 Munf. 391; Coiner v. Hansbarger, 4 Leigh 452; Clarke v. Young &c. 1 Cranch 180; Violet v. Patton, 5 Cranch 153; Smith &c. v. Triplett &c. 4 Leigh 600; Peay v. Morrison's ex'ors, 10 Grat. 157: Roberts v. Atwood & Co. 8 B. Monroe 210.

9. Generally assignee must sue obligor or maker in a reasonable time.

The general rule is, that the assignee is to sue the obligor or maker in a reasonable time. Lee v. Love &c. 1 Call 497; Thompson v. Govan, 9 Grat. 695. What is a reasonable time has not yet been defined in Virginia, as it has been in Kentucky. There the assignee of a note suable in a circuit court, has to use reasonable diligence to obtain a judgment on the note, at the first term after it is payable, or (if it be assigned after it is payable,) at the first term after the assignment. It is not necessary that he should, at all hazards, commence his suit immediately, if the intervening period before the term of the court would admit of delay. But he is required to use such diligence as a man of ordinary prudence, who deemed it important to have a judgment at the first term, would use if he were alone interested in the collection of the note. Thomas v. Taylor &c. 2 J. J. Mar. 218; Hume v. Brown, 3 Dana 450; Perrin v. Broadwell, Id. 597; Bays v. Patton, 8 B. Monroe 229.

A note due January 1, 1843, was assigned the 7th. The obligor, who had been residing in Marion county, Kentucky, was then temporarily absent in a southern state. Suit brought against him in that county, on the 28th of March-shortly before his return to the state—was in time. Bard v. McElroy's adm'r, 6 B. Monroe 418.

In another case, there were at the date of the assignment 37 days to the commencement of the term, and but 27 for service of process in time for judgment at that term. Process was issued on the 23d of these days, leaving only 4, or at most 5, within which to serve it, and it was not served within that time. Hence there was not judgment at the first term after the assignment. Though there was judgment at the following term, and execution was returned nulla bona, the assignee failed to recover against the assignor. Bays v. Patton, 8 B. Monroe 228.

Yet the assignee, it has been repeatedly said, is required to use, not all possible diligence, nor indeed extraordinary diligence, but only that measure of diligence which a prudent man would be expected to use in the case, if he were solely interested. It cannot be said that the delay of a few days, leaving still ample time, upon all reasonable calculation, for due service of process, would evince either a disposition not to obtain a judgment at the first term, or a want of ordinary prudence in taking the steps requisite for that object. McMurray v. Wood, 9 Dana 46. Reasonable diligence was used by an assignee, who commenced his suit more than 40 days before the commencement of the first term after the maturity of the note. Latham v. Western, 8 B. Monroe 299.

When the assignment is accompanied by an agreement, or directions on the part of the assignor, that before resorting to coercion the assignee shall try the effect of repeated solicitations for the money, the legal rule of strict diligence cannot with justice be applied, either in determining the length of time after the assignment, within which the process of law shall be resorted to, or the energy and rapidity with which the personal demands shall be made on the debtor. Hume v. Brown, 3 Dana 450.

Although the note, in respect to which there was such agreement, was suable before a justice, and was assigned the 30th of December 1833, yet there having been application to the debtor on the day of the assignment, or within two days after, and the suit having been delayed for the purpose of making farther solicitation for the money and with a reasonable expectation that by further urgent solicitation it might be obtained, and such further solicitation having in fact been made, the delay to issue legal process until the 23d of January 1834, was not unreasonable unless the assignee, in the mean time, had good reason to suppose that by such delay, the debt might be lost. S. C.