Minnis v. Pollard

1 Call 226 | Va. Ct. App. | 1798

PENDLETON, President,

delivered the resolution of the Court as follows:

On the 30th of June, 1791, Minnis, for value received, assigns to Pollard, an order of Thomas Carter upon John Carter,■ for some military certificates, and binds himself to pay the certificates, with interest from the 1st January, 1791, if Pollard does not recover them from Thomas Carter, after pursuing the legal method for obtaining the same.

In Jlpril, 1793, a suit is brought in the name of Minnis against Carter, founded on these papers, and claiming the value of the certificates. Judgment is obtained, and execution issued in Jlpril, 1793,' which is returned, no effects. And, in October, 1793, Pollard brings this suit upon the assignment, and adds two general counts. Upon the trial, he gives the former record in evidence, to shew he had pursued the legal method for obtaining the money from Carter, with the auxiliary parol proof that Carter was deemed insolvent from January, 1791, the commencement of the transaction.

It is objected, that the suit against Carter does not appear to have been for the same thing. But this objection is made in the very teeth of the record, which shews it to be the same.

Another objection was, that the suit being in the name Minnis, it does not appear to have been pursued by Pollard, as his engagement required. But the answer is, that it was probably the only legal method which could have been pursued by Pollard: And, by whomsoever the suit was prosecuted, the essential purpose was obtained by it, namely, that of discovering whether the money could have been recovered of Carter.

The judgment is therefore affirmed.