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Act of January 13, 1818-January 1, 1820. R. C. ch. 125.

Stat. Larg. 275; Oct. 1748, 6 Stat. Larg. 87; Oct. 1786, c. 68, 12 Stat. Larg. 358; 1795, c. 191, R. C.

form the assignee of his claims, when notice of the assignment is given to him. Scott v. Jones, 1 Brock. R. 244.

A legatee assigns his claim for the legacy by deed; the assignee brings suit for it against the executor and his surety, who produce in their defence a receipt in full, signed by the legatee and bearing date before the deed of assignment: Held, such a receipt is no evidence against the assignee without proof that it was really executed before the assignment, nor is the date to be taken as prima facie true. Wilcox v. Pearman, 9 Leigh, 144.

In an action by the assignee against the maker of a promissory note, he cannot setoff against it a bill of exchange, for which the assignor is responsible to him, unless it appear that he was the owner thereof before he received notice of the assignment. Ritchie et al. v. Moore, 5 Munf. 388.

In an action by the assignee of a promissory note, against the maker, he may set off a note of the assignor which he held at the time of receiving notice of the assignment of his note, though the note of the assignor offered as a set-off was not due at the time of notice of the assignment, but which became due before the note on which suit was brought. Stewart v. Anderson, 6 Cranch, 203; see Feazle v. Dillard et al. 5 Leigh, 34-5.

Upon a plea by the assignor that the action against him did not accrue within five years, it is found that though the debt originally due from the obligor has been discharged by payments to and set-offs against the assignor, yet the assignee did not know until after judgment in his suit against the obligor, that nothing was due; and it is also found that five years have not elapsed since the judgment: Held, that as part of the debt was discharged by a set-off, it was only the judgment which established the set-off as a payment, and until that judgment was rendered, the action did not accrue against the assignor. Scates v. Wilson & Edmunds, 9 Leigh, 473.

If an action of debt be brought by the assignee of a bond (or note) against the obligor (or maker) and he pleads payment to the plaintiff, evidence of the payment to the assignor will not support the issue. Phelps v. Frazer, 3 Rand. 103; Hatcher v. Cabell, 6 Rand. 353.

The acknowledgement, written or verbal, of the assignor of a claim, that the same has been paid to him, is no proof against the assignee, unless it be proved to have been made before the assignment, and the burden of proof lies on the debtor. Wilcox v. Pearman, 9 Leigh, 144.

Davis, 2 Wash. 219, or of a promissory note, Lee v. Love, 1 Call, 497, must use due diligence to recover the amount from the obligor or maker before he can resort to the assignor, who is then liable to the assignee, but not before. Mackie's ex'r v. Davis, 2 Wash. See the able opinion of Waties, J. as to the liability of assignors on general principles. Parker v. Kennedy, 1 Bay, 403.

What is due diligence, chiefly depends on the circumstances of each case; it, however, always involves a judicious course of proceeding. It is, in general, the duty of the assignee to prosecute his claim to judgment against the obligor or maker; a return of "no effects," to a fi. fa. thereon, will be sufficient to charge the assignor, and be conclusive of the obligor's or maker's inability to pay the debt in an action by the assignee against the assignor. Mackie's ex'r v. Davis, 2 Wash. 219; Barksdale v. Fenwick, 2 H. & M. 113, Roane, J. opn. (note), 4 Call, 492; Bronaugh & Co. v. Scott, 5 Call, 78; Goodall v. Stuart, 2 H. & M. 105; though no bail was required of the obligor. Harrison's adm'r v. Raines, 5 Munf. 456.

But the assignee should be content with the result of the fi. fa.; for, if on the return of "no effects," thereto, he sue out a ca. sa. which is executed, his right of action against his assignor will be suspended as long as the obligor remains in custody; for a ca. sa. executed tends to satisfy the judgment. Johnson v. Hackley, 6 Munf. 448.

A. having a claim for debt in suit, assigns that claim to B. for a valuable consideration, and writes a letter to his attorney entrusted to prosecute and collect the claim, informing him of the assignment, and requiring him to pay the money, when collected, to the assignee; the attorney accepts the order, payable when collected; he afterwards collects the money, fails to pay it over to the assignee and becomes insolvent. Held, the assignor and drawer is not liable to the assignee unless he has used due diligence to recover the money from the acceptor of the order, and given the assignor and drawer notice of the acceptor's failure to pay. Wood's adm'r v. Duval, 9 Leigh, 6.

See Eddings v. Glascock, 1. N. & M'C. 295. Is the assignee bound to proceed against the heirs of the obligor, having proceeded without effect against his personal representatives, before he can resort to his assignor? It seems not. See M'Williams v.¿ Smith, 1 Call, 123.

There is no obligation on the assignee to pursue the bail of the maker, before the assignee can sue his assignor. Caton et al. v. Lenox et al. 5 Rand. 31.

The taking of a forthcoming bond, on a The assignee of a bond, Mackie's ex'r v. judgment and execution against the obligor

Act of January 13, 1818-January 1, 1820. R. C. ch. 125.

2. 6. The assignee or assignees, his, her or their executors or administrators, of any bill, note or obligation, shall hereafter be entitled to recover from any(d) previous assignor or assignors, his, her or their executors or administrators: Provided, That in any suit brought against a remote assignor or assignors, his, her or their executors or administrators, he, she or they shall be subject only

of an assigned bond, is not such a satisfaction of the judgment, as will preclude the assignees from having recourse against the assignors. Smith & Rickard v. Triplett & Neale, 4 Leigh, 590.

When assignees have recovered judgment on the assigned bond, and sued execution against the obligor, and that execution is returned nulla bona, they are entitled to recourse against the assignors; and it is no defence for the assignors to show neglect or malfeasance in the sheriff; the assignors, as parties injured, may sue the sheriff for such misconduct; the assignees are not bound to sue him, before they have recourse against the assignors, upon the contract of assignment. Smith et al. v. Triplett et al. 4 Leigh, 590.

A suit, however, is not an essential ingredient of due diligence. See Roane, J. opn. in Barksdale v. Fenwick; and Marshall, C. J. in Violett v. Patton, 5 Cranch, 142, 153154, (1809) said: It is understood to be the law of Virginia, that the maker of the note must be sued, if he is solvent, but his insolvency dispenses with the necessity of suing him; his insolvency may be proved by his having taken the oath of an insolvent debtor, or by other evidence left to a jury to say, whether a suit against the maker would have produced the money, or any part of it. And Roane, J. delivering the court's op. in Brown v. Ross, (1819) 6 Munf. 391: In order to charge the endorser, 'tis in general necessary to sue the maker; there are exceptions, however, to this rule; a discharge of the maker, under the former bankrupt laws, or the insolvent laws of this state, or proof to the satisfaction of a jury, that the maker is in fact insolvent, whereby a suit would have been wholly unavailing, will be sufficient to charge the endorser. See Hooe v. Wilson, 5 Call, 61.

So if the note be a forgery, and the assignor has received the money from the assignee, or where the assignor practised a fraud on the assignee, or where exchange notes were given between the maker and assignor, as a consideration for each other, and the note given by the assignor has not been paid by him, nor sued on, &c. et al. v. Lenox et al. 5 Rand. 31.

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A bond may be assigned, in general terms, with a verbal agreement, that the assignor shall not be responsible, and he will not be responsible to a subsequent assignee ignorant of such agreement. Stubbs v. Burwell, 2 H. & M. 536; and see Pike v. Street, 1 Moo. & Malk. 226.

What is due diligence, is to be decided by the jury. Bronaugh & Co. v. Scott, 5 Cali, 78.

If C. assigns to H. a bond of W. payable on demand, W. (the obligor) be insolvent at the time of the assignment, it is not necessary that the assignee should bring suit on the bond against W., in order to entitle himself to recourse against the assignor. In such case, the assignor is immediately liable to the assignee, on the contract of assignment; and though the assignee forbears to bring suit against the obligor, on an arrangement with him whereby he agrees to receive payment at a future day, the assignor will not be discharged, if he sanctions the arrangement, and promises to pay the debt to the assignee, though he be ignorant of the legal effect of such arrangement to discharge him from liability. Coiner v. Hansbarger, 4 Leigh, 452.

In an action by an assignee against an assignor of a promissory note, plaintiff, to maintain his action, must shew that the maker was insolvent at the time the note was made or the contents fell due, or that he has used due diligence to recover from the maker, and failed. If the maker of the note was resident in Virginia, and solvent, at the time the note was made, or at the time of assignment, and afterwards removed to an adjoining state,-quere,-whether the assignee was bound to pursue him in such adjoining state, and prosecute an action against him there, in order to entitle himself to recourse against the assignor. But whether he is bound so to pursue or not, he may do so; and if he elects to do so, and fails to commence, or to prosecute his suit against the maker with due diligence, he has no recourse against the assignor. Drane v. Scholfield, 6 Leigh, 386.

(d) Prior to these provisions an assignee or endorsee could not maintain an action at law against a remote assignor or endorser, for want of privity. Mandeville v. Riddle, 1 Cranch, 290, 298; Dunlop v. Harris, 5 Call, 16; Caton et al. v. Lenox et al. 5 Rand. 31. But relief was given him in equity; reserving to the remote assignor or endorser the same defence against the remote assignee or endorsee, as against his immediate assignee or endorsee. Riddle & Co. v. Mandeville, 5 Cranch, 322; Bank of the U. S. v. Weisiger, 2 Peters's R. S. C. 331, (January T. 1829.)

Act of January 13, 1818-January 1, 1820. R. C. ch. 125.

to such recovery, and shall have the benefit of the same defence, as if the suit had been instituted by the immediate assignee or assignees: And provided also, That no joint action shall be commenced or prosecuted against any two or more persons, unless when they shall be joint assignors. But nothing in this act contained shall be so construed as in any manner to abridge or destroy any rights which endorsers of bills of exchange, or assignees of bonds, notes and obligations, now are entitled to by law, or to which they were entitled on the first day of April, one thousand eight hundred and seven. Jan. 19, April 1, 1807, c. 108, ed. 1808.

On the subject of the assignment of choses in action, see Buller, J. in Master v. Miller, 4 T. R. 340; Ryall v. Rowles, 1 Ves. sen. 348, 353; Jones v. Gibbons, 9 Ves. jun. 410; Welch v. Mandeville, 1 Wheat. 233, 5 Wheat. 277; Prescot v. Hull, 17 Johns. R. 284; Briggs v. Dorr, 19 Johns. R. 97; Woodbridge v. Perkins, 3 Day, 364; Johnson v. Bloodgood, 1 Johns. Cas. 51; Anderson v. Van Allen, 12 Johns. R. 343; Goodwyn v. Cunningham, 12 Mass. R. 193; Dawes, Jud. v. Boylston, 9 Mass. R. 337, 346; Cutts v. Perkins, 12 Mass. R. 206; Anderson & Willans v. Tompkins et al. 1 Brock. R. 456; Dearle v. Hall, 3 Russell, 1; Loveridge v. Cooper, Ib.

A. having claims in the hands of an attorney for collection, gives him a verbal direction to pay part of the money when collected to B. in satisfaction of a debt due B. from a third person. Held, A. in his lifetime, or his administrator after his death, may revoke this direction to the attorney, and demand

the money. Beers &c. v. Spooner and another,
9 Leigh, 153.

By the sale of timber trees standing, to be
chosen by the vendee, an interest passes
which the vendee may assign before election
made. M'Coy v. Herbert, 9 Leigh, 548.
The assignee having chosen and marked the
trees, may maintain trocer against the vendor
for felling and converting them, although
the vendor had no notice of the election. Ib.

What is an equitable assignment of a fund in, or that may come into existence, and of the rights of the assignee, see Brooks v. Hatch, 6 Leigh, 534; Leslie v. Guthrie, I Bing. New C. 697. And what is not such an assignment, see Clayton v. Fawcett's adm'r, 2 Leigh, 19. See Eib v. Martin, 5 Leigh, 132; Tilghman v. Jackson, 5 Peters, 580; Ex parte Alderson, 1 Madd. 53; Ex parte South in the matter of Row, 3 Swanst. 391; Lett v. Morris, 1 Sim. 607; United States v. Cutts, 1 Sumner, 132, 145-6.

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Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

Whereas creditors have experienced great difficulties in the recovery of debts due from persons(a) residing(1) without the jurisdiction of this commonwealth, but who have effects here sufficient to satisfy and pay such debts: for remedy whereof,

1. § 1. Be it enacted, &c. That if any suit(2) which hath been, or hereafter shall be commenced for relief in equity, in any superior court of chancery, or in any other court, against any defendant or defendants, who are out of this country, and others, within the same, having in their hands effects of, or otherwise indebted to, such absent defendant or defendants, or against any such absent defendant or defendants, having lands or tenements within the commonwealth,'(3) and the appearance of such absentees be not entered, and security given to the satisfaction of the court, for performing the decrees; upon affidavit, that such defendant or defendants are out of the country, or that upon enquiry at his, her, or their usual place of abode, he, she, or they could not be found, so as to be served with process; in all such cases, such court may(b)

(a) Does this act comprehend bodies politic, existing without the jurisdiction of this commonwealth? See The Bank of the U. S. v. Deveaux et al. 5 Cranch, 61; M'Queen v. Middletown Manu. Co. 16 Johns. R. 5.

A creditor residing without this commonwealth, (as for instance in Maryland,) may sue out an attachment in this commonwealth, against his debtor, residing also without this commonwealth, (as for instance in Maryland,) and others residing in this commonwealth, indebted to, or having in their hands effects of such debtor. Williamson et al. v. Bowie et al. 6 Munf. 176.

A claim, arising in contract of bailment, made out of this commonwealth, against a non-resident, is a claim, for which a foreign attachment in chancery, under this act lies. Peter v. Butler, 1 Leigh, 285.

(1) See Alex'r Thompson's case, 1 Wendell, 43. The bill in order to give the court jurisdiction under this stat. must distinctly aver the non-residence of the debtor, and if the home defendant in his answer say, that the debtor is a resident, though he does not plead that matter in abatement to the jurisdiction, the plaintiff to sustain the jurisdiction, must prove the fact of the non-residence of the debtor; and if his non-residence be not distinctly averred in the bill, or if so denied by the home defendant, be not proved, the court has no jurisdiction,

and a decree for plaintiff, will on that ground, be reversed. Kelso v. Blackburn, 3 Leigh, 299.

(2) This is not a proceeding in rem,—it is a suit by a plaintiff against defendants, and a decree in such a case is conclusive evidence only against parties and privies. Mankin v. Chandler et al. 2 Brock. R. 125.

(3) The court cannot entertain a suit against an absent person who has no property or subject of any kind, within the jurisdiction of the commonwealth. Miller v. Sharp, 3 Rand. 41.

Several creditors cannot unite in the same original bill to attach the effects of an absent debtor. They may file their separate claims, and be allowed payment out of the same fund, but they cannot unite in the same original bill. Yeaton v. Lenox, 8 Peters, 123.

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(b) The preliminary steps, required by the literal provisions of this law, to authorize a restraining order, were found in practice, to conflict with the obvious intention of the legislature; as during their progress, the home defendants had ample time to defeat the object of the attaching creditor. The intention of the legislature has been effectuated by the practice of the courts, sanctioned by the court of appeals.

Agreeably to the practice of this state, a subpana in chancery, endorsed by the clerk

Act of February 11, 1819-January 1, 1820. R. C. ch. 123.

make any order, and require surety if it shall appear necessary to restrain the defendants in this country from paying, conveying away, or secreting the debts by them owing to, or the effects in their hands of, such absent defendant or defendants, and for that purpose may order such debts to be paid, and effects to be delivered to the said plaintiff or plaintiffs, upon their giving sufficient security for the return thereof to such persons, and in such manner as the court shall direct. Sept. 1744, 5 Stat. Larg. 220; Oct. 1777, 9 Stat. Larg. 396; 1792, c. 78, R. C.

2.2. The court shall also appoint some day in the succeeding term, for the absent defendant or defendants, to enter his or their appearance(c) to the suit, and give security for performing the decree; a copy of which order shall, by direction of the court, be forthwith published in any newspaper within this commonwealth, the circulation of which shall, in the opinion thereof, be best calculated to apprise the absent defendant or defendants, of the pendency of such suit, and continued for two months successively; and another copy thereof shall be posted at the front door of such court; or, such order of publication may be entered at rules held in the clerk's office of any superior court of chancery, [or, of any county or corporation court, (Feb. 3, 1820, c. 31, § 1,)] subject to the control of the court, in the same manner, that other proceedings at the rules, are subject to such control. [And, by act of March 13, 1840, c. 53, 4, hereafter orders of publication against absent defendants may be so made as to require their appearance at rules.] If such absent defendants shall not appear and give such security,(4) within the time limited, or such further time

issuing it [qu. as to the effect of an endorsement by plf. atto. without a previous order by the court, 5 Munf. 55,] "to stop the debts and effects of the absent defendant, in the hands of the defendant within the state, to satisfy a debt due from the absent defendant to the attaching creditor," naming the respective parties; or, an endorsement to the same effect, operates from the time of the service of that process on the home defendant, as an attachment, to stop the payment by him of debts due from him to the absent defendant, and to prevent a transfer of effects, &c. in his hands, to such absent defendant, ond inhibits a transfer thereof by said absentee, to other persons. M'Kim et al. v. A. & J. Fulton, 6 Call, 106; Williamson et al. v. Bowie et al. 6 Munf. 176; Kennedy v. Brent, 6 Cranch, 187.

And, it is the duty of the officer to serve such subpana, as soon as he reasonably can; and, if by his negligence, the creditor sustains loss, he will have to answer therefor. Kennedy v. Brent, 6 Cranch, 187.

Though a defendant is restrained from paying money by attachment, he ought, nevertheless, to pay interest, during the time he is so restrained, if he continues to hold the money, in which case it will be presumed, he used it. To free himself of this charge, he may bring the money into court. Templeman v. Fauntleroy, 3 Rand. 434, 4467; see Fitzgerald v. Caldwell, 1 Yeates, 274, 2 Dall. 215; and Willings et al. v. Consequa,

1 Peters's R. 321.

(c) Though the proceedings under this act are had in a court of chancery, the question

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Carr, J. after quoting C. J. Marshall's words in this case, said, in Templeman v. Fauntleroy, 3 Rand. 441, "I apprehend the correct rule to be this, that when a case purely legal, is the subject of a foreign attachment, it will be considered substantially a legal proceeding, and conducted on legal principles. But where, in its nature, the case properly belongs to a court of equity, all the equitable rules and principles will attach to, and govern it." Therefore, where a foreign attachment was sued out against an absent debtor and a resident garnishee, in a case equitable in its nature, the court decreed between the debtor and the garnishee what was due from the latter to the former, after satisfying the claims of the plf. The pleadings and proofs between plf. and deft. being sufficient to authorize such decree. Templeman v. Fauntleroy, 3 Rand. 434.

(4) When this security is given, the attached effects are discharged; and, if the attaching creditor waives the demand for surety, and allows the debtor to appear and answer, without giving surety to abide and perform the decree, the attachment will, thereby, be discharged, and the creditor confined, in the further prosecution of his claim against the debtor, to him, personally. Tiernans v. Schley & Shroeder, 2 Leigh, 25.

Principal debtor and surety being bound in a bond for money payable at a future day,

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