#### *Thompson v. Govan.

January Term, 1853,

Richmond.

(Absent Lee, J.)

Assignor and Assignee — Delay of Assignee to Sue Maker —Effect*—Case at Bar. — Assignee delays for two years to sue the maker of the note. In the absence of proof of the maker’s insolvency at the time or shortly after the note fell due, he cannot recover against the assignor.

This was an action of assumpsit in the Circuit court of Hanover county by John Thompson assignee of the Bank of the United States against Archibald Govan. The declaration contains two special counts, and the general counts for money lent, laid out and expended, and an account stated. In the first special count the plaintiff declares as assignee of the Bank of the United States, who was assignee of Henry Curtis, who was assignee of the defendant; and then sets out a note made by Watt H. Tyler, on the 13th of May 1835, by which he promised to pay to John Tyler or order, sixty days after date, the sum of 800 dollars, negotiable and payable at the office of discount and deposit of the Bank of the United States at Richmond; the assignment for value by endorsement on the back thereof by John Tyler to John Minge; the like assignment for value by Minge to the defendant; and like assignments for value from the defendant to Curtis, from Curtis to the bank; which for value assigned it to the plaintiff. That on the 21st of July 1837, the plaintiff instituted an action against Watt H. Tyler upon the note which had been regularly protested, and notice of protest given to all the parties; and on the 7th of April 1838 recovered a judgment against said Tyler for 800 dollars, with interest, 2 dollars 95 cents charges *of protest and costs which amounted to 9 dollars 16 cents, upon which judgment and execution had been sued out, and had been returned “no effects.” By reason whereof the defendant had become liable to pay the said several sums of money with interest on 800 dollars, and the additional sum of 3 dollars 25 cents, the cost of the record in that cause. And being so liable in consideration, &c., after-wards, promised, &c.

The second count only varies from the first in omitting the assignment to Curtis, charging the assignment to be by the defendant to the bank.

The issues were made up upon the plea of “nonassumpsit,” and “the statute of limitations;” and on the trial the jury found a special verdict. The verdict found the note as described in the declaration endorsed by the parties mentioned in the first count, for the accommodation of the maker, the discount of the note at the office of the Bank of the United States at Richmond, and the payment of the proceeds to the maker, and the regular protest, and notice of nonpayment to the endorsers, and a payment upon the note by the defendant in September 1836; the assignment by deed bearing date the 22d of Rebruary 1837, by the Bank of the United States to the plaintiff of this and many other claims of the bank; the action by the plaintiff against Watt H. Tyler the maker, commenced on the 21st of July 1837, the judgment recovered in that action on the 7th of April 1838, and the issue of execution thereon, and return of “no effects.” Upon this verdict the court rendered a judgment for the defendant. Whereupon the plaintiff applied to this court for a supersedeas, which was allowed.

Lyons, for the appellant.

R. T. Daniel, for the appellee.

*

Assiguor and Assignee — Delay of Assignee to Sue Haker — Effect.—In the principal case it is held, that the assignee of a note must use due diligence to collect the note from the maker, and unless he can show that he has, or that the maker is insolvent, an unreasonable delay (for instance as in the principal case two years), to sue, will bar his right of recourse against his assignor. Upon this question of the rights and duties of the assignee of a note, see the principal case cited in the following: Payne v. Huffman, 98 Va. 375. 36 S. E. Rep. 476; Tompkins v. Woodyard. 5 W. Va 221; Gillilan v. Ludington, 6 W. Va. 133, 134; Atherton v. Hull. 12 W. Va. 180; Merchants' Nat. Bank v. Spates, 41 W. Va. 31, 23 S. E. Rep. 683; 2 Va. Law Reg. 561.

SAMUELS, J.

This is an action of assumpsit brought *by John Thompson, jr., against Archibald Govan. There is a slight degree of confusion in the statement of the plaintiff’s case as set forth in the first and second counts of his declaration : Racts are alleged therein, which are relevant only in a suit upon the assignment of paper not mercantile; yet the claim therein also set forth for the notarial charges of protest, and the averment of notice of dishonor could only be made in regard to mercantile paper. On the whole, however, the two counts should be regarded as asserting a cause of action growing out of an assignment of a promissory note not *352treated as negotiable. The- first count *alleges*the making of the note by Watt H. Tyler to John Tjrier, the assignments thereof- by John Tyler to John Minge, by John. Minge to Archibald Govan, by Archibald Govan to Henry Curtis, by Henry .Curtis to the Bank of the United States, and by the bank to the plaintiff Thompson; which assignments are severally alleged to have been for value received by the several assignors. The .second count alleges the making of a like note and the same succession of assignments thereof, except those to and by Curtis; it-being alleged that John Minge assigned the note to the United States Bank; no consideration is averred for these assignments or any of them. Common counts are inserted for money laid out and expended, money lent and advanced and upon an account stated. - The defendant pleaded non. assumpsit - and the statute of limitations ; a special verdict was found by a jury, and on that verdict a judgment'was rendered for the defendant, which is brought here for revision.

It is unnecessary for the proper'disposition of this case to decide whether the - charter of the United States Bank allowed -it to acquire and transmit title to paper of this description, or whether the facts found by the jury constitute a consideration sufficient *to subject the defendant to the demand in the terms in. which it is asserted, or whether the case alleged is in .other particulars sustained by-the finding of the jury; because; if all these questions should be decided in favor of the plaintiff, yet the case must be decided in. favor of the defendant for obvious reasons.

The assignees.-of this note,' according to the facts found by the jury, respectively took it upon the implied terms of looking to no previous assignor thereof for the consideration received by such assignor,-until due diligence had been used to collect the amount from the maker. This use of due diligence could only be diápensed with by showing that it would not have produced satisfaction. It is not alleged by the plaintiff nor proved by the jury that- Watt H. Tyler, the maker, was insolvent at the time Govan made the assignment, or recently thereafter; nor is any other reason alleged by the plaintiff or found', by the jury to excuse the omission to use the diligence prescribed to assignees. The case then stands upon the mere .question whether due diligence has been used' to recover of the maker. The- note is alleged- and found to have been made May 13, 1835, payable at sixty days-; there is no allegation in the declaration as to the time of the assignments, or any of them. The jury, however; upon a- fair construction of their verdict, may be said to have found that all the assignments, previous to that by the bank, were made before the maturity of the note; thus at the maturity of the paper the holder of it, whether Curtis or the bank, could hold the previous assignors liable only by using due diligence against Tyler the maker. As already stated, the note was dated May 13, 1835; without grace, it matured July 12th, 1835. Suit might have been brought against the maker immediately thereafter, yet it was- not brought until July 21st, 1837; and judgment, by default, was rendered at April term 1838. This is not *the diligence which the law prescribes. The principles governing this case are found in the decisions of this court. Lee v. Love, 1 Call 432; Brown v. Ross, 6 Munf. 391; Saunders v. Marshall, 4 Hen. & Munf. 455; Caton v. Lenox, 5 Rand. 31; Barksdale v. Fenwick, 4 Call 492; Goodall v. Stuart, 2 Hen. & Munf. 105; Drane v. Scholfield, 6 Leigh 386; McLaughlin v. Duffield, 5 Gratt. 133. Thus on the plea of nonassumpsit the case was clearly with the defendant. On the plea- of the statute of limitations it is equally clear the law was for him, if the facts be as alleged by plaintiff’s counsel in the argument here: Yet as I hold that no cause of action against defendant is shown to have ever existed at all, it would be idle to show why it must have been barred by the statute of limitations, if it had existed as plaintiff’s counsel supposes.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Samuels, J.

Judgment affirmed.