The judgment was undoubtedly taken as collateral security, and not as satisfaction; yet it became, to all intents, the property of the bank, and subject to its exclusive control the instant it was assigned. Had the defendant given directions for its collection, the justice might have disregarded them; and it was therefore the business of the bank to proceed with reasonable diligence. Such is admitted to be the abstract consequence of the relation created by the contract of assignment; but it is supposed that a different consequence was produced by the special nature of its terms. Is there a word in the testimony to show that the defendant agreed to give notice of- payments in order to enable the bank to call on the justice for its money? Mr Simpson does not say that such was a distinct condition. . He says it was the understanding that he should have notice; but this understanding, if it were worth any thing on other grounds, seems to have arisen, not from any thing expressed by the defendant, but from his own misapprehension of the legal consequences, in supposing that he was not bound to trouble himself with the business of collection because the defendant had not employed him. The terms of a special contract, however, are to be expressed, and not to rest in understanding merely, which is a matter of such dangerous tendency in legal estimation as to be incompetent evidence of an ordinary fact. The defendant was entitled to a credit for the payments lost by the supineness of the bank.
Judgment reversed, and a venire de novo awarded.