This was an action in the name of the State for the use of Bradley county against the maker and assignor of the following instrument:
“By the first day of January, A. D. 1878, I promise to pay J. R. Barnett three hundred and thirty-eight 32-100 dollars in county scrip, with five per cent, interest from date. April 9th, 1877.
(Signed) A. C. Jones.
And endorsed :-Pay to Bradley County.
J. R. Barnett.
Oct. 8th, 1879.”
It was averred that the assignment was for value; that payment hac( been demanded of and refused by Jones, of which Barnett had notice, and that county warrants were, at the maturity of the paper, worth nine-five cents in the dollar.
A demurrer to the complaint was overruled and the defendants resting, a jury was called to assess the damages and upon the return of their verdict, final judgment was entered against both defendants.
It is urged that since the passage of the Act of February 27th, 1879, depriving counties of their corporate powers, a county can not maintain a suit, nor even become the assignee of a chose in action. But Sec. 3 of that Act provides that “when any county has any demand against any persona or corporations, suit thereon may be brought in the name of the State for the use of the county.”
As to Barnett, the Court erred in holding the complaint sufficient. Sec. 572 of Gantt’s Digest is expressly restricted to instruments for the payment of money alone. This was not a promissory note, but a special agreement for the delivery of property. Our statute makes all contracts in writing for the payment of money or property assignable. Gantt’s Dig., sec. 563; Hawkins v. Watkins, 5 Ark., 481, as modified by Owen v. Lavine, 14 Id., 389; Worthington v. Curd, 15 Id., 491.
But the assignor of a property note does not incur the liability of an indorser of negotiable paper; that is to say, he does not undertake to pay upon default of the maker and notice to himself. Before resort can be had to him, the assignee must have prosecuted the maker to insolvency, or it must be averred that the maker is notoriously insolvent, so as to render an action against him a vain and useless thing. Dent v. Ashley, Hempst., 55; Lemons v. Chouteau, Ib., 85.
Our statutes of assignments is in substance the same as the Virginia and Kentucky statutes on the same subject, and in the two cases last cited, some of the adjudications upon this subject are collected. The following cases will also be found to support the proposition we have stated. Hume v.Long, Rep’s., 6 T. B. Monroe, 115; Levi v. Evans, 7 Ben Monroe, 115; Chambers v. Keene, 1 Met. 293; Lee v. Love, 1 Call. 497, and cases cited by Minor in note to 3d Edition; Brown v. Hull. 33 Grattan, 23.
And the principle upon which the assignor’s responsibility rests being a failure of consideration, the measure of the responsibility, in the event of recovery, is the consideration paid for the note assigned and lawful interest. Duncan v. Littell, 2 Bibb, 425; Morehead v. Prather, 1 A. K. Marsh, 542; Davis v. Harrison, 2 J. J. Marsh, 190; Embry v. Stephenson, 3 Id., 268; Wood v. Berthoud, 4 Id., 304; Metcalfe v. Pilcher, 6 B. Monroe, 530; Elliott v. Threlkeld, 16 Id., 343; Short v. Trubue, 4 Met., 300.
The judgment against Jones is affirmed. As to Barnett it is reversed with directions to sustain the demurrer.
SEPARATE OPINION BY