I concur in the views expressed by Mr. Justice McFarland. Young v. Cole, 3 Bing. N. C. 724, is a case directly in point, and supports the contention of the appellants here, but a different rule has been established in this state. Section 1774 of the Civil Code as originally enacted provided as follows: “ One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act thereby warrants the instrument to be what it purports to be, and to be binding according to its purport upon all the parties thereto, and also warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause.” The code commissioners, in their notes under this section, cite the case of Young v. Cole, 3 Bing. N. C. 724. But in 1874 that section was modified by striking therefrom the following clause: “ Thereby warrants the instrument to be what it purports to be, and to be binding according *128to its purport upon all the parties thereto.” I cannot understand what purpose would be subserved by this amendment, unless the legislature intended to change the rule, and to declare that one who sells an instrument like the one in controversy should not thereby be held to have warranted the instrument to be what it purports to be, or binding according to its purport upon the parties thereto.
Nearly all of the cases cited are cases of fraudulent misrepresentation, deceit, or forgery of non-negotiable instruments. As to the latter instruments, the courts seem to treat the assignment of them as an assignment of the indebtedness, and not the sale of an instrument like those referred to in section 1774.