The recovery is put on two grounds:—
1. Imposition or fraud;
2. The consideration happening to fail.
1. Fraud is not to be presumed, and has not been proved. If the circumstances were equally in the knowledge of both, and the assignee took the risk, he must bear the loss.
2. If the transaction was fair, and if the consideration failed through the negligence of Graham, he must bear the loss. It does not appear, that the consideration, for which value was given, was an undertaking that the bond should be paid, but an assigning of the bond. If there had been an undertaking by the assignor, and reasonable diligence by the assignee, the assignor would have been liable.
The jury gave a verdict for 20l. But, on motion, this verdict was set aside, because there was no proof of fraud, or express promise to be answerable for the payment of the money; and because Graham’s negligence and trafficking with Smith, after the bond was due, and want of notice or demand on Goudy, is sufficient to counterbalance any presumption that can arise out of the case, in favour of Graham.
It was never tried again.