#### Wood’s Adm’r v. Duval.

November, 1837,

Richmond.

(Absent Cabeia, and Brockenbrough:,* X)

Written Assignments — Consideration†—Gift— Liability of Assignor. — A written assignment of a claim does not necessarily import a valuable consideration; and if it be fairly inferrible, from the circumstances, that the assignment was a gift, the " assignor cannot be field responsible to make good tfie claim, to tfie immediate assignee or to his assignees for value.

Assignments — Liability of Assignor — Due Diligence-Case at Bar. — A. having a claim for debt in suit, assigns that claim to B. for a valuable consideration, and writes a letter to fiis attorney entrusted *15to prosecute and collect the claim. Informing Mm of the assignment, and requiring Mm 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.

Lucy Wood recovered judgment and award of execution on a forfeited forthcoming bond, against William Miller and William Sampson, in the district court *of Richmond, in September 1797, for ¿¿'139. 19, with 5 per centum per annum interest from August 1796 till paid, and the costs; and Sampson obtained an injunction from the then high court of chancery, to stay further proceedings at law. Samuel M’Craw was the attorney of mrs. Wood for the prosecution and collection of this claim. While the injunction staying the proceedings at law was yet pending in the court of chancery, mrs. Wood executed a writing in the form of a letter addressed to M’Craw, dated in October 1806, in these words: “ My son William Wood is authorized to collect or dispose of a debt due me by W. Sampson and W. Miller, which debt was some years past in-joined by them in the chancery court for the Richmond district. (Signed) Lucy Wood.” William Wood then executed a writing, likewise in the form of a letter to M’Craw, dated in November 1806, in these words : “ Sir, on the 6th October 1806 I traded to mr. T. M. Woodson 1200 dollars of the within debt with its interest till paid, for which I am bound. You will, therefore, on collection of Sampson and Miller’s debt, pay the same to him or order. (Signed) W. Wood.” And Woodson, in the same month of November 1806, made an assignment of his interest in the claim, by writing in these words: “ The claim I hold in this debt, I transfer to J. P. Price, without recourse to me and heirs. (Signed) T. M. Woodson.” Upon a copy of the above writings, M’Craw made the following indorsement, dated in January 1807 — “The within are copies of originals filed in my office by J. P. Price, and which I will comply with when the money comes into my hands, should it ever get there. (Signed) Sam. M’Craw.” After which, Price assigned the claim to William Duval, and he assigned it to his son John Duval.

In November 1822, John Duval exhibited his bill in the court of chancery of Richmond against William Duval, the executors of Price Woodson, William Wood, *Lucy Wood, and M’ Craw, setting forth the facts above stated, and alleging further, that Sampson’s injunction had been dissolved ; that the debt due from Miller and him (the subject of the several assignments above mentioned), or some part of it, had been received by some one of the defendants ; and that, supposing M’Craw liable for the money, the plaintiff had brought an action against him at law, but had dismissed it, being advised that he could only he relieved in equity, since the assignments under which he claimed were only available in equity. Therefore, the bill prayed, that the defendants respectively should be compelled to account for and pay to the plaintiff, any money by them, or any of them, received of the debt so assigned to him.

William Duval, and the executors of Price, answered the bill. The defendants Lucy Wood, William Wood, and M’Craw, all died pending the suit, and without having put in answers; and the proceedings were revived against their administrators, respectively. M’Craw’s administrator put in an answer, shewing that M’Craw died insolvent, and that he had no assets. As to the administrators of Lucy Wood and William Wood, the bill was taken pro confesso. The defendant Woodson also continued in default.

It appeared by the pleadings and proofs in the cause, that the assignment of the debt in question from William Duval to the plaintiff John Duval, was a gift from the father to the son ; that the assignments from Price to William Duval, and from Woodson to Price, were both assignments for valuable consideration though they were both without recourse to the assignors ; that the assignment from William Wood to Woodson was also made for valuable consideration ; but of the character of the transaction as between mrs. Wood and her son William, there was no other evidence than that afforded by her letter to M’Craw of October 1806. It was also proved, that M’Craw, professing to act as attorney for *mrs. Wood, received from Miller’s administrator, in July 1815, the sum of 1051 dollars in full of the debt due from Miller and Sampson. And it appeared, that M’Craw had taken the oath of insolvency, under the statute for relief of insolvent debtors, in March 1820. But when he became actually insolvent, nowise appeared.

The cause having been transferred to the circuit superior court of Henrico, that court decreed, that the administrator of Lucy Wood, and the administrator of William Wood, out of the estates of those decedents in their hands, should pay the plaintiff 1051 dollars, the amount received by M’Craw, with interest from July 1815, the date when he received it. As it appeared, that any decree against M’Craw’s administrator would be unavailing, none was given, but liberty was reserved to the plaintiff, or to the administrators of the Woods against whom the decree was made, whichever of them should satisfy the decree, to apply to the court for a decree against M’Craw’s administrator. And the plaintiff asking no decree against William Duval, or the executors of Price, or Woodson, the suit was discontinued as to those defendants.

Upon the petition of mrs. Wood’s admir.istrator, this court allowed him an appeal from the decree.

Johnson, for the appellant.

Robinson, for the appellee.

*

He decided tfie cause in tfie circuit superiour court.

†

Written Assignments Do Not Necessarily Import Valuable Consideration. — Tfie assignment of a chose in action not assignable at common law, does not make tfie assignor liable without a valuable consideration for tfie assignment; and tfie assignment being in writing does not necessarily import that it was for vaiuable consideration. Hopkins v. Richardson, 9 Gratt. 493, citing the principal case; Hall v. Smith, 3 Munf. 550; Breckenridge v. Auld, 1 Rob. 148.

See further, monographic *note*on “Assignments” appended to Ragsdale v. Hagy, 9 Gratt. 409.

PARKER, J.

It may be doubted whether *16Lucy Wood, the appellant’s intestate, would, under any circumstances, have been liable to the appellee for the debt which she authorized her son “ to collect or dispose of,” since there is no evidence that it was to be done for her benefit, and the probability being', both from her own letter and that of her son to M’Craw, that it was a gift to her son. The bill does not charge that she assigned *her claim for value ; there is no proof that she did so ; her son speaks of his being bound, but says nothing of her liability over; and her letter to M’Craw does not purport to be an assignment of thfe claim, but a mere annunciation to her attorney of the fact that she had authorized her son to collect or to dispose of it, in order, no doubt, to satisfy M’Craw of her son’s right to call upon him for a settlement, unless he disposed of the debt of another. It would be difficult, I think, under these circumstances, to charge her even if the appellee had diligently pursued M’Craw.

But, without pressing this point, I am of opinion that, in the events which have happened, neither of the Woods can be charged. The letters addressed by them to M’Craw are no more than orders on their agent or attorney, for money ; imposing on the writers the ordinary responsibility of drawers of such paper, and no more. If the fund had been collected and in the hands of M’Craw, their accepted drafts would have imposed upon the holders the obligation, at least, to demand payment, and in case of refusal, to'give notice to the drawers, in order to enable them to take the proper steps for their security; the holders could not lie by for years, and then resort to the Woods, or either of them. The law is the same where the fund is to be collected. M’Craw, upon accepting the order, became liable to pay to the transferees as soon as he received the amount of the debt. The money was received in July 1815, and there is no evidence of M’Craw’s insolvency until March 1820. In the meantime, the whole debt belonging to the appellee or to the holders of the orders, they might control M’Craw in the collection; and if they permitted him to receive it, he might instantly have been sued at law upon his acceptance, or the orders been returned, with notice to the drawers of his default. It was their duty to ascertain when the money came into his hands ; and then to take the proper steps to enforce ^'payment, or to return the orders, and enable the drawers to charge M’Craw. Instead of this, it is not shewn that they took any efficient steps to recover the money from M’Craw, or gave any notice of his default to either of the Woods, until the filing of this bill in November 1822; more than seven years after M’Craw had collected the debt. All this appears upon the face of the bill itself.

I am therefore of opinion, that the decree of the circuit superiour court should be reversed, and the bill, as to both the Woods, dismissed.

BROOKE, J.

As it does not appear that mrs. Wood received any consideration for her order on M’Craw her attorney, in favour of her son William Wood, she was not responsible to the plaintiff, or to any of the intermediate assignees of the order. That William Wood was responsible, appears by the terms of his assignment of 1200 dollars with interest, which, he says, he had “traded” to Woodson, “and for which he was bound.” M’Craw accepted.the order in 1807, and collected the money in 1815. Erom that time we hear nothing of any demand upon him by any of the parties through whose hands the order had passed, nor of any notice to either of the Woods that M’Craw had refused to pay, until 1822, when this suit was brought. Treating the case as an ordinary assignment of a deist, I perceive no ground for. coming into a court of equity. After an acceptance of M’Craw, and the receipt of the money by him, it was no longer a mere equitable assignment as to him ; he became a debtor at law ; and it appears by the bill, that the plaintiff so considered him ; for he brought his suit a t law, and dismissed it, because, as he says, he could not establish his claim in that forum, but more probably, I think, because M’Craw had become insolvent. However that may be, the great delay in giving notice to mrs. Wood, if she *was bound, and to William Wood, who was bound, that M’Craw, after the acceptance of the order and the receipt of the money, had refused to pay it, was, I think, such laches as exonerated them from any responsibility for the failure of M’Craw to pay the order. The plaintiff is not entitled to recover in any forum. The decree should be reversed, and the bill dismissed, both as to Lucy Wood’s representative, and William Wood’s, though the latter has not appealed.

TUCKER, P., concurred. Decree reversed, and bill dismissed.