By the Court. This discount cannot be allowed, because the transactions are all subsequent to the time of assignment and notice. The property in the bond was then transferred out of the plaintiff. He is now only a mere nominal plaintiff, made use of by Desverneys, the holder of the bond, for the purpose of recovering from the obligor. Newman could not even release the action, for the assignment itself imports a covenant that the assignee shall bring the action in the assignor's name, and recover and have the money to his own use. 11 Mod. 171. The equity in favour of an obligor, can never be carried down further than the assignment and notice. So that if payment were afterwards made to the obligee, it would be at the risk of the obligor; and he would be obliged to pay it over again to the assignee. 1792. Newman V. Crocker. WHITE against EAGAN. May Term ACTION of trespass, to try title to lands, and for da- Parol testi. mages, &c. The Court, in this case determined, that parol testimony might be given in evidence, to explain the situation of land, contrary to the face of the deed; if it is evident from the nature of the thing itself, that there is a mistake in the deed, as where north is mentioned for south; or south for north, et vice versa, &c. The land in question being described in the deed to bound on Sir John Colleton to the north, and one Cox to the south; whereas, in fact and in truth, it did really bound on Cox to the north, and on Sir John Colleton to the south. mony may be admitted to explain the situation of land, although contrary to the description in the deed; if a mis take is appa rent from the nature of the thing itself May Term. Where son assault demesne M'KENZIE against MILLIGAN. ASSAULT. On justification and son assault demesne, is pleaded, the pleaded in this action. defendant be comes plain tiff in the ac Holmes, for defendant, admitted he struck, but contended tion, and has that the plaintiff struck first, which was a fact tendered to and conclude the jury by the defendant, and that he ought to be considered as plaintiff in the action, and of course, had a right to open and conclude the case. his case. After hearing counsel, the court resolved, that as the defendant made himself, by his plea, the plaintiff in the action, he had a right to proceed and open his case, call his witnesses and conclude it. 2 Lill. Pract. Reg. 523. tit. Son Assault. May Term. THOMPSON and Wife against The Executors of It is not the THIS was an duty of an ex action brought in right of Mrs. ecutor, to Thompson, for her share of her grandfather, Samuel Snee's es search out the or legatee, tate. It appeared that the executor of Snee made sale of the other person, effects of the estate, and closed the accounts some time in entitled to a share of an es- the year 1778; and always kept the money by him, to pay tate. It is he is always enough, that over to those entitled to a distributive share, whenever they ready, when should think proper to call for it. The money remained called upon, to pay it. in the executor's hands till it became so much depreciated, as to be worth little or nothing. So that the only question was, who should bear the loss, the plaintiffs, or the executor? For the plaintiffs, it was said, that if the executor had paid over this money in 1778, as soon as he received it, it would have been valuable, as paper money had not thener perienced a great depreciation; and, therefore, as the executor thought proper to keep it, he oughtto sustain the loss. On the other hand, it was answered, that the money was ready always in the executor's hands, and would have been paid on demand. That a legatee, or person entitled to a distributive share of an estate, was bound in law, to shew his right, and make a demand. It was not the duty of the executor to search out the person so entitled, and make a tender, as if he were an original debtor. The Court (present, RUTLEDGE, Ch. J. BURKE, and BAY, Justices) were clearly of opinion, that it was the duty of a legatee, or other person claiming a legacy, or distributive share of an estate, to make his claim of the executor, and shew his right to receive, before such executor could legally pay over. There was no obligation on the part of the executor, to search out the legatee; it was enough that he was always ready, when called upon, to pay it. Verdict for defendants. BELL against The Administrators of Wood. THIS was an action of assumpsit, by the indorsee, against the administrators of the drawer of a promissory note. May Term. A note given to compound a felony, is void by the common law, It came out from the evidence in this case, that Wood, in the hands the drawer of this note, had, in his life-time, driven to mar ori of an indorsee, because ginally found ed in turpitude; as much so as a note given on a usurious or gambling contract. An indorsement after it is due, independent of the foregoing considerations, will permit the parties to go into the consideration of it in the hands of an indorsee, as well as if it had remained in the hands of the original payee. VOL. I. 1792. Bell V. The Admini Wood. ket, eleven hogs belonging to one Warren, his neighbour and upon his return home, Warren had him taken up for hog-stealing, and taken before a magistrate. When he apstrators of peared before the magistrate, he recommended a compromise between the parties, at the same time telling Wood, if he would not settle with Warren, he should be taken to gaol, Wood, to avoid going to goal, accordingly complied, and gave the note in question, for 271. 10s. being one-half of 55% the sum he would have been compelled to pay, had he been convicted of hog-stealing in the court of sessions, (or have suffered the punishment of thirty-nine lashes,) agreeable to the act of assembly in such case made. This note came into the hands of the indorsee, the present plaintiff, upwards of a year after it had fallen due. Marshall and Hall, for the defendants, took two grounds; first, that this note was extorted from the defendant's testator, by duress. Secondly, that it was given on an illegal consideration, and therefore void by the common law. And if void in its original creation, no subsequent indorsement could give it validity, so as to charge the drawer, or his representative. That the indorsee could not have a greater or better right than the original payee had; and if the payee could not have recovered on this note, the indorsee could not. Besides the note was indorsed after it became due, and therefore subject to every defence which the ori ginal payee might have set up. Pringle, contra, argued that there was no duress in the transaction, because there was evidently a debt due from Wood, to the amount of the value of the hogs; and it was lawful for him to make satisfaction to Warren for them, even before the magistrate. But whatever the consideration of this note might have been, there was no privity of it, brought home to the indorsee, the present plaintiff. And were such a doctrine, as that contended for by the defendants, to prevail, and be admitted, it would tend in a great measure, to destroy the negotiability of notes and bills of exchange, &c. That nothing could affect notes and bills in the hands of an innocent indorsee, except they were found ed on usurious, or gambling contracts, or transactions; and these were expressly rendered void by statute. Doug. 636. 640. BAY, J. Had the proceedings of Warren against Wood been of a civil nature, for the value of the hogs only, and a compromise had taken place between the parties, it would not have been duress. But as it appears to have been a criminal proceeding for felony, and the note in question given to compound that felony, and to avoid going to gaol, it is void by the common law. All contracts made to compound felonies, or to prevent the due execution of the law, by the connivance of magistrates, sheriffs, or other officers, are void. Powell, 186. 3 Burr. 1675. The circumstance of this note being in the hands of an indorser ignorant of the original transaction, makes no kind of difference; for, being void, in its original creation, for illegality and turpitude, it can never afterwards be valid, so as to charge the drawer. Some notes are void by the common law, others made so by statute; there is, however, no essential difference between them. They are in both cases equally void, and without any binding efficacy on the part of the drawer. If, then, they are so, no good reason can be assigned why the holder of a note, made void by the common law, should recover, any more than the indorsee of a note made void by the statute. In all these cases the common law and statutes hold the same powerful language; to wit, that they never had á legal existence. Could a doubt, however, arise on this ground, yet, the last one taken by the defendant's counsel; is conclusive. Being indorsed a year, after it became due: this is a circumstance which carries with it a suspicion of the fairness of the transaction, and is sufficient to throw it out of the course of trade; in which case the indorsee takes upon the credit of the indorser, and must therefore stand in the situation of the person to whom it was originally payable. And the drawer may offer in evidence any circumstance, which might be given in evidence, to impeach it 1792. Bell V. The Administrators of Wood |