renew the execution for six months, is not reasonable diligence.-Ibid. 36. There need be no averment in the declaration by assignee against assignor, that he had used due diligence to collect the debt, if such diligence appear in other averments.-Ibid. 37. If the assignee seek to recover of the assignor, because of his intermeddling with an execution in the sheriffs hands, and inducing the sheriff to give time to the debtor, this ground should be set out in the declaration.-Ibid. 38. Endorsement on note by one who is not privy thereto, "guaranteeing the ultimate payment thereof," does not constitute such endorser an assignor, nor is obligee, in order to retain his recourse against him, bound to use such diligence to coerce payment from obligor as is necessary to subject an assignor.--Ely v. Bibb 4 J. J. Mar. 73. 39. The principle upon which the liability of an assignor rests, is a failure of consideration. -Wood v. Berthoud, 4 J. J. Mar. 304. And due diligence by suit having failed to coerce payment, an implied contract to refund the consideration received for the assignment, is that upon which he is held liable.-Smallwood v. Woods, 1 Bibb, 543. 40. Intermediate assignee cannot recover of his assignor, without showing that he is entitled to the judgment against the obligor.--Wood v. Berthoud, 4 J. J. Mar. 304. 41. As long as assignee affirms contract of assignment by holding to his judgment against obligor, he cannot claim of his assignor the consideration of assignment.-1bid, 305. 42. When the holder of bill, bond or note, has prosecuted obligor to insolvency, it is the duty of assignor to take notice thereof, and instantly to pay or tender payment to assignee of the consideration of the assignment.-Ibid, 306. 43. If assignee accept the consideration money, the contract of assignment is dis-affirmed; otherwise, if he refuse.--Ibid, 307. 44. Assignee after electing to abide by his judgment, has no recourse against assignor.-Ibid. 45. Intermediate assignee must, before he can recover from his assignor, show that subsequent assignees have been paid, or that he is entitled to transfer the note or judgment to the assignor from whom he seeks to recover.-Ibid, 310. 46. The liability of assignors should not be extended beyond the point to which it has already been carried.-Anderson v. Bradford, 5 J. J. Mar. 75. 47. If the holder of an assigned obligation attempts to pursue the obligor to insolvency, and in the course of the proceeding, an officer so conducts as to render himself liable for the debt, the holder of the obligation must avail himself of his rights against the officer, before the assignor will be responsible.--Johnson v. Lewis, 1 Dana, 184. 48. G. executed a note which was endorsed by L. to J. and by the latter to the Bank of the United States-The Bank sued G. in the federal court; execution was returned nulla bona and a ca. sa. was issued and his body taken and confined in jail, until released by an order from a justice of the peace, under an act of assembly. The Bank then recovered against J. on his liability as assignor, and J. sued L. as his assignor. Held, that the Kentucky statute abolishing imprisonment for debt, is not the law of the federal courts, and that the jailer, by discharging G, under such authority, made himself liable for the whole debt, and that L. was not responsible as assignor.--Ibid. Evidence thereon. 1. Verdict and judgment on the plea of payment to assignor, in an action by assignee against obligor, is not evidence of the fact of payment against the assignor, unless he had notice of the pendency of the suit against the obligor.-Maupin v. Compton, 3 Bibb, 214; Morgan v. Simmons. &c. 3 J. J. Mar. 611; 7 Mon. 207; 4 Wheat. 213, 220. 2. The obligor in a note, is a competent witness to prove the assignment in an action between the obligee and assignee, in which the fact of the assignment is contested.-Gilman's Adm’rs. v. Pugh & Doyle, 1 Litt. 286. 3. The assiguor, without recourse, of a note given on an usurious consideration, may be compelled to testify, and is a competent witness to prove the usury in an action by the assignee against the payor.-Gorham v. Carrol, 3 Litt. 221. 4. Assignor of an obligation is, when released, a competent witness to prove its execution.-Ford v. Hale, 1 Mon. 23. 5. As the right of the assignee to recover of his assignor, rests upon the responsibility of the defendant as assignor, evidence that the assignee had given the obligor a new credit under an agreement to receive something in lieu of performance by which the performance was waived, is admissible to defeat the action of assignee against assignor.-Adam v. Hodgen, 1 Mon. 87. 6. On the trial of a suit, assignee against the assignor, the plaintiff gave in evidence the exemplification of the record of a justice of the peace in Indiana, in which was contained a judgment against the note on a plea of the statute of limitations. The record being certified according to the act of congress, held that it was competent evidence.-Scott v. Cleveland, 3 Mon. 62. 7. Agreement of the assignor that obligor imprisoned on ca. sa. on assignee's judgment might be discharged, and that assignor should remain as far bound as if the discharge was by due course of law, cures the objection, if available, that on the previous fi. fa. the return was "no goods," instead of no estate found.-Postlethwait v. Garrett, 3 Mon. 346. 8. It may be proved by parol, notwithstanding the written assignment of the note in the usual form, that the transfer was without recourse.— Butler v. Suddeth, 6 Mon. 543. 9. Return of nulla bona, is conclusive evidence of obligor's insolvency.-Wood v. Berthoud, 4 J. J. Mar. 304. Replevying the debt, is conclusive evidence of his solvency.—McGinnis v. Burton, 3 Bibb, 6. Effect of Assignment. 1. The assignment of a judgment carries along with it the damages afterwards" given upon the dissolution of an injunction, and upon an appeal, &c.-Marshall v. Craig, 3 Bibb, 292. 2. The assignment of a chose in action not assignable by law, does nevertheless transfer an authority to use the name of the assignor, and the court will protect the assignce in the exercise of such authority.-Ibid, 291. 3. The assignment of a note during the pendency of a suit upon it, is a valid ground for a dismission of the suit.--Hall v. Gentry, 1 Mar. 556. 4. By an assignment of a note for the purchase money, or by an assignment of the execution, if judgment and execution have been obtained, all the lien which the assignor, the vendor, had on the property sold, for the payment of the purchase money, passes to the vendee.--Johnston v. Grathmey, 4 Litt. 317. 5. The assignee of a bond for the purchase money of land, has a lien on the land if the assignor had.—Kenney v. Collins, 4 Litt. 289. 6. The assignment in consideration of natural affection, of a bond for the conveyance of land, and delivery of the bond to the assignee, is a contract which is as much beyond the power of the court of equity to vacate as an assignment for a valuable consideration would be.-Pawling v. Speed, &c. Litt. Sel. Cases, 77. 7. A note assigned in pledge by payee, and again passed to another with notice of the pledge,, is held for the benefit of the payee as to the amount exceeding the sum for which it is pledged. But if assigned without notice, to one to whom the note is paid, he will be protected. All who have thus assigned a note with notice of the pledge, are answerable to payee for amount of the excess.-Patterson v. Deering, 1 Mar. 326. 8. An assignee of a judgment procured in a sister state, against a citizen of this state, may use the name of the assignor to enforce payment; but if the assignor be dead, and there is no executor or administrator in whose name a suit can be maintained in this state, the assignee will not be com pelled to administer, but may proceed in chancery in his own name, and collect the debt.Cobb v. Thompson, 1 Mar. 508. 9. Quere: Can the assignee of a judgment have a subsequent entry on record, of satisfaction made by consent of the debtor and assignor, set aside on motion at a subsequent term, without proof of express notice of the assignment, to the debtor, and that it was for a valuable consideration?—Ward v. Halbert, 1 Mon. 42. Rights of Assignor. 1. A note negotiated in the southern bank of Kentucky, assumes the grade of a foreign bill, and the assignor of the note having taken it up from bank, may expunge the assignment and sue in his own name.-Bell v. Morehead, 3 Mar.158. 2. An assignor of a note negotiated in bank, acquiring the possession thereof, is prima facie the owner, and will be presumed to have taken it up after it had been dishonored.-Ibid, 161. 3. Assignor refunding to assignee the consideration of the assignment, has an equitable right to the judgment against obligor, and will be protected by common law courts.-Wood v. Berthoud, 4 J. J. Mar. 305. 4. An intermediate assignor of a bond for the conveyance of land, has a lien upon the land in the hands of an assignee, where he has paid the purchase money to the assignee, not otherwise.-Ligon v. Alexander, 7 J. J. Mar. 290. In such cases, the liens from first assignor to last assignee take precedence according to priority, as they would were all the transfers made by deed.-Ibid. 5. Statute authorizing the assignment of bonds, &c. does not operate upon the lien of the assignor of a bond for land, to prevent him from pursuing his lien in the hands of a remote assignee. -Ibid. TITLE 13. ATTACHMENT AT LAW. Justices may 1796. IN FORCE FROM FIRST OF JANUARY 1797. AN ACT directing the method of proceeding in Courts of Equity, against Absent Debtors, or other Absent Defendants, and for settling the proceedings on Attachments against absconding Debtors: Approved December 19, 1796.—1 Litt. 595. SEC. 5. It shall be lawful for any justice of the peace, (a) upon issue attach- complaint to him made by any person that his debtor is removing ments, & when. out of the county (b) privately, or absconds and conceals himself, so that the ordinary process of law cannot be served upon him, (c) to grant an attachment against the estate of such debtor, or so much thereof as shall be of value sufficient to satisfy the debt and costs of Where debt such complainant; which attachment where the debt or demand shall is £5 or 1000 pounds of to- be of the value of five pounds current money, or one thousand bacco, returna- pounds of tobacco or upwards, shall be returnable to the next court of quarter sessions, and directed to and served by the sheriff or his ble to quartersessions. (a) An attachment not appearing to have been issued by a justice of the peace, is erroneous and illegal.-McLorty v. Davis, Pr. Dec. 69. (b) An attachment must issue from the county where the defendant does or last did inhabit, and if issued from another county the proceeding is void, and it neither bars the action of the absconding debtor or his assignee against the garnishee.-Robertson, &c. v. Roberts, 1 Mar. 249. (c) An attachment not containing those charges, which alone could have justified the issuing it, is illegal; and one not following the words of the law, which authorizes such proceedings, is materially defective.-McLorty v. Davis, Pr. Dec. 69; Cooper v. Logan, Ibid. 320. 2. That the defendant is "about to abscond" will not authorize the issuing an attachment.-Lewis v. Butler, Pr. Dec. 290. 3. Every attachment must state the nature of the demand, so specially, that a recovery thereon will bar a subsequent suit, for the same cause.Hickman v. Gest, Pr. Dec. 352. 4. The complaint on which an attachment is founded should be positive and not in the alternative; "that the defendant was moving out of the county privately, or that he so absconded and concealed himself that the ordinary process of law could not be served upon him," is bad.-Shipp v. Davis, Har. 65. 5. An attachment sued out on the suggestion that the defendant had "either left the county and Commonwealth or so absconds himself that the ordinary process of law cannot be served on him" is erroneous.--Davis v. Edwards, Har. 342. 6. That the defendant "hath removed out of the county so that the ordinary process of the law cannot be served upon him or that he "hath absconded," will not authorize the issuing an attachment. It lies only where he is removing himself out of the county privately or so absconds and conceals himself that the ordinary process of the law cannot be served on him.-Rees v. Bishop, Pr. Dec. 347; Kennedy v. Dillon, 1 Mar. 354. ner. on. What goods under sheriff, unless in cases where the sheriff is a party interested, and then the same shall be directed to and served by the coroAnd it shall be lawful for such sheriff or officer (d) to serve and levy the same upon the slaves, goods and chattels (e) of the may be levied party absconding, wherever the same shall be found, (ƒ) or in the hands of any person or persons indebted to, or having any effects of the party absconding, and to summon such garnishee or garnishees to appear at the next court of quarter sessions to be held for the said county, there to answer upon oath what he or she is indebted unto such party, and what effects of such party he or she hath in his or her hands, or had at the time of serving such attachment, which being returned executed, the court may thereupon compel such garnishee to appear and answer as aforesaid. (g) Garnishee may be summoned to court and re quired to answer on oath as hands. to effects in his Justice to take bond be SEC. 6. Every justice of the peace before granting such attachment, shall take bond and security of the party for whom the same fore granting shall be issued, in double the sum to be attached, (h) payable to the its nature. attachment, & (d) Neither at common law nor by force of any legislative provision, has an officer executing an attachment issued by a justice of the peace a right to empannel a jury to enquire into the right of property attached, either on executing the order of sale or at any other period.-Dickey v. Evans, 2 Litt. 129. 2. That the attachment was so erroneous that the court of appeals would have reversed the judgment on it, will not authorize bringing trespass against the officer acting under it unless it was void.-Owens v. Starr, 2 Litt. 235. (e) It is lawful to levy an attachment on the slaves, goods and chattels of the defendant but not to lands.-Pr. Dec. 69, 347. (f) The person who has possession of the goods of the defendant in an attachment, can maintain no action against the officer for levying the attachment on them while in his possession. -Hutcheson v. Ross, 1 Litt. 217. 2. The property of an absconding debtor is subject to attachment, without regard to the possession being in another.-Hutcheson v. Ross, 3 Mar. 491. 3. One having the possession of funds of an insolvent as his agent, or being his creditor on one transaction, may retain for his claims, on other accounts against any other creditor; because of his equality of equity and advantage at law. Paul, &c. v. Rogers' Adm'rs, 5 Mon. 168. (g) The assignment of an obligation divests the obligee of his interest in it, and vests it in the assignee; and though payments made by the obligor to the obligee before notice of the assignment will be protected, it is wrongful on the part of the obligee; and therefore such debt is not liable to attachment as the debt of the obligee after assignment, though before notice thereof to the obligor; provided the obligor have notice of the assignment before he makes his confession as garnishee.-Stockton v. Hall, Har. 160. 2. If a court give an erroneous judgment against a garnishee, it will not protect the garnishee against persons having a right to the debt who were not parties to that suit. The garnishee to protect himself should have his confession entered at large on the record, and then if the court decide erroneously he can prosecute an appeal or writ of error to correct it.-Stockton v. Hall, Har. 161. 3. Where a judgment is obtained against a defendant in an attachment, and afterwards a judgment for the whole amount is rendered in the same suit against the garnishee, the latter judgment does not extinguish the former.-Price v. Higgins, 1 Litt. 274. (h) An attachment is illegal if no bond is entered into by the party obtaining it.-Pr. Dec. 290. 2. An attachment being a remedy in derogation of the common law, the statute giving this remedy should be strictly pursued in all its provisions. If the bond does not pursue the statute, it is fatal.-McDaniel v. Sappington, Har. 94. 3. The attachment should run in the name of the Commonwealth. The bond taken should be in double the amount of the debt, and the intererst then due thereon, or the court cannot on the trial allow interest.-McDaniel v. Sappington, Har. 95. defendant, for satisfying and paying all costs which shall be awarded to the said defendant, in case the plaintiff suing out the attachment therein mentioned shall be cast in his suit, and also all damages which shall be recovered against the said plaintiff for his suing out such attachment; which bond shall be by the same justice returned to the court to which the attachment is returnable, and the party entitled to such costs for damages may thereupon bring suit and recover: and every attachment issued without such bond taken, void if no bond (or where no bond shall be ruturned) is hereby declared illegal and void, and shall be dismissed. Attachment be taken. SEC. 7. All attachments shall be repleviable by appearance and Attachments putting in good bail, if by the court ruled so to do, or by giving bond. how repleviable with good security to the sheriff or other officer serving the same; which bond the sheriff or other officer is hereby empowered and required to take to appear at the court to which such attachment shall be returnable, and to abide by and perform the order and judgment of such court. Sheriff's du ty and liability in cases of at tachments, replevied. Proceedings on attachments for sums under £5. SEC. 8. Upon the defendant or defendants replevying any attached effects, by giving bond and security to the sheriff or other officer as aforesaid, the sheriff shall return the name of the security by him so taken, and if such security shall be adjudged insufficient by the court; and if the defendant shall fail to appear and give special bail, if thereunto ruled by the court, such sheriff and security shall be subject to the same judgment and recovery, and have the same liberty of defence and relief as if such security had been taken upon execution of mesne process. SEC. 9. Upon complaint made to a justice of the peace, that any person indebted to the complaint in any less sum than five pounds current money, (i) or one thousand pounds of tobacco, is removing out of the country privately, or so absconds or conceals himself that a warrant cannot be served upon him, it shall be lawful for such justice, taking bond and security as in this act is before directed in the case of attachments returnable to the court of quarter sessions, to grant an attachment against the estate of such debtor, or so much thereof as shall be value sufficient to satisfy the debt and costs of the party praying such attachment, directed to the sheriff or any constable of his county, and returnable before himself or any Whenever a jury would be necessary if the suit were by original writ, it cannot be dispensed with if the party proceed by attachment.-Ibid. 4. If the attachment bond is for less than double the sum demanded, the attachment is il other ty than the debt, is void, and the process must be quashed.-Samuel v. Brite, 3 Mar. 317. (i) Since the act increasing the jurisdiction of justices of the peace they have original and exclusive jurisdiction in all attachments not ex legal and void.-Martin v. Thompson, 3 Bibb, ceeding fifty dollars, founded on any specialty, bill or note in writing,, or account.-Owens v. Starr, 2 Litt. 230. 252. 5. An attachment bond taken in a less penal An attachment for less than fifty dollars re |