#### George Bird *v.*Samuel J. Ross.

From Rutherford.

An accountable receipt for a judgment under seal, which vests the equitable title in the receiver, in law only binds him to pay what he receives on it.

Upon such an assignment, if the assignee gives the full value, and has no day of payment, without an agreement to the contrary, the assignor guaranties that the judgment can be collected. But if less than the amount is given, or day of payment bad, the assignor only guaranties the existence of the judgment.

Covenant upon the, following instrument, on which a credit of seven hundred dollars was endorsed :

“ April lOih, 1822, received of *George*Bird, an order to the Sheriff “ of Rutherford county, for the amount of *Peter Fisher’s*judgment, “ that he obtained for *Mark Bird,*deceased, for thirteen hundred dol- “ lars, and for six months interest, which we will account for.

“ARTHUR CLARKE, [L. S.]

“SAMUEL J. ROSS, [L. S.]”

*473The statement of the case was rendered exceedingly obscure by a transposition of some of the lines of theori-ginal, in making out the copj for this Court. It is inferred that an execution on the judgment mentioned in the above deed, had been levied on a tract of land milled the High Shoals, which had belonged to *Peter Fisher,*and was alleged by the Plaintiff and Defendant to have been fraudulently conveyed to his son, *Jacob Fisher*— that an action of ejectment was prosecuted by the Defendant for that land, in the name of the heirs of *Mark Bird,*of whom the Plaintiff was one, and that if successful in the action, the Defendant, was to have the land, and pay the residue of the judgment; otherwise it was to be lost by the Plaintiff; evidence of this kind, was offered to the Jury. The Plaintiff contended, that *Ross*either had received full satisfaction from *Fisher,*for the judgment, or had so fraudulently conducted the action of ejectment, as to prevent a recovery therein.

His honor Judge Norwood, however, instructed the Jury, that by the deed above set forth, an equitable title to the judgment mentioned in it, vested in *Clarke*& Ross, and that it gave them full authority to collect and recover the amount of it, and they were bound to pay the Plaintiff the balance of the judgment, whether they collected it or not. A verdict was returned for the Plaintiff, and the Defendant appealed.

*Mogg,*for the Appellant.

*Wilson,*contra.

HerdersoN, Judge.

The deed of the 10th April, 1812, with the endorsement, is evidence that *Clarke*and *Ross*had become the equitable owners of the judgment. But it furnishes no evidence of the terms and conditions of the transfer. They are left to be implied by law, from the circumstances of the transaction. If *Clarke*and *Ross*advanced, or agreed to advance the ftill amount of the -judgment with interest, without having a day of payment *474gjven to them, this imposed on *Bird*a guarantee that the money should, or might with reasonable exertions, be collected ; for it is not to be presumed, that *Boss*and *Clarke*would pay, or agree to pay the full amount, without having day of payment given, or some such equivalent, and take upon themselves the risk of collection.— Tn such case, therefore, the risk of collection must have been assumed by *Bird,*for the law always looks to the consideration, in raising the promise. If less than its amount was given, something like its market value, the law placed the risk on *Ross*and *Clarke,*for they had been paid for it in the reduction of the price. If that was the fact, they would he bound, whether they collected the money or not. The only obligation imposed oo *Bird*was, that the money called for by the judgment was due, and I suppose that there was sucli a judgment. I think therefore, that the Judge erred, in informing the Jury that the Defendant was liable to pay (he whole amount, whether he collected the money or not. In the absence of all evidence, as to the special price agreed to be paid for any article, the market value Ms the one which the law presumes (o be understood, and fixes that as the price. But there is some evidence from which the Jury might properly come to a conclusion what was the agreement, viz. the after conduct of the parties. For although the conduct of the parties cannot be used to explain a contract, it is the best evidence to prove what that contract is. I think therefore, that there should he a new *trial;*for although the evidence might have satisfied the Jury that *Boss*had, or might have received the money, or was guilty of fraud, in not attending to the suit for the High Shoals, these are facts of which the Court can form no opinion. Possibly the Jury decided on the ground first mentioned by the Judge, in which we think there was error, and for that it must go before a Jury again.

Per Curiam. — Judgment reversed.