The Opinion of the Court was delivered by
Wilson, C. J.This action is brought to recover back money paid for a judgment on a justice’s docket, which was afterwards appealed to and reversed in the Circuit Court. The judgment was assigned by the appellee to the appellant in these words: “For a valuable consideration, I hereby assign the within named judgment (which was described in another assignment on the same paper) to Loring Snow, and guarantee the collection of the same, if well attended to. December 4th, 1838;”. and signed by W. Baker, the appellee.
Upon the trial of the cause, the appellant asked the Court to instruct the jury that the appellee’s guaranty of the judgment, if well attended to, was a guaranty that the judgment was a valid one, and that the terms “well attended to,” in the assignment, relate to the diligence to be used in the process of collection, and not to the sustaining of the judgment in another Court. This instruction the Court refused to give, and a verdict and judgment was rendered against the appellants. The refusal of this instruction is relied on for the reversal of this cause, and we think it sufficient. The sale of the judgment, like the sale of an article of personal property, implies a warranty of title to the thing sold, and entitles the purchaser to recover back the price paid for it, if the title proves defective. In this case, the reversal of the judgment by the Circuit Court destroyed all title and interest in it, and as the justice’s judgment was reversed for want of jurisdiction, no attention on the the part of the appellant to the prosecution of the case in the Circuit Court could have produced a different result. But we do not think that the terms of the assignment imposed upon him any such attention. The terms “well attended to,”' in the assignment, clearly refer to the collection of the judgment, and not to the sustaining of it upon the contingency of an appeal. The instructions ought, therefore, to have been given.
The judgment is reversed and the case remanded.
Judgment reversed.