Payne's Exors. v. Huffman

Citations

• 98 Va. 372
• 36 S.E. 476
• 1900 Va. LEXIS 51

Syllabus

<p>1. Assignoe and Assignee—Diligence—Recourse—O'ase in Judgment.— Due diligence must be used to charge either a guarantor or an assignor. The assignee being entitled to recover of the assignor on the grounds of failure of consideration, it will devolve on him to show (unless otherwise agreed) that he used due diligence to collect the debt of the debtor, but used it in vain. What is due diligence cannot be precisely defined, but immediate suit, followed by execution, is always due diligence, though this is not indispensable. In the case in judgment, the assignee has not only failed to show due diligence or lack of injury to the assignor, but the evidence tends to show that if diligence had been used the debt could have been made out of the principal debtor, and therefore the assignee • cannot recover of his assignor.</p>