Carnes ex rel. Olden v. Field

2 Yeates 541

Opinion

Yeates J.

In a late cause, at Beading, (Ludwig assignee v. Croll,) my brother Smith and myself adopted a distinction, between a promise to pay a bond obtained without good consideration made to an assignee after the assignment, and such a promise made previous to the assignment, and in confidence whereof in the latter case, the party took the same. The assignee in the first instance, was held subject to the same equity as the assignor. What more prudential step can a person who meditates the obtaining of an assignment take, (1 Wms. 497, 2 Equ. Ca. Ab. 87,) than by calling on the party who had sealed and delivered the specialty, and who must necessarily be conusant of all the circumstances, which gave birth to the transaction ? Shall the latter by his misapprehension at the moment, violate the principles of good faith with the former ? Surely not.

Per tot. cur.

The general rule of our law, certainly is, that mistake, fraud or want of consideration may be given in evidence, even against the honest assignee of a specialty. But where the obligor represents the money thereon as justly due, to a person desirous of taking the assignment, and engages to pay the same, in faith and confidence whereof the assignment is procured, the former takes on himself the risk of the adequacy of the consideration, and the fairness of the original transaction, and relinquishes any objections he might otherwise have on those grounds. Such conduct is virtually a new contract, and forms an exception to the general rule.

Motion denied.