By the whole Court. The appeal was void, tbe state duty not having been paid and certified as tbe law directs; therefore no process was pending thereon. Tbe defendants then pleaded in nullo est erraium — and tbe judgment of tbe Court of Common Pleas was affirmed. By the whole Court.
By the assignment of the note declared tha ms i\\% tc> veco-vei receive tbe money duo thereon, of Elisha Clark, who executed tbe note: And therefore tbe defendants could not be liable to any action thereon, unless tbe plaintiff should show that tbe money could not be recovered or obtained from Clark, either on account of its not being due, or tbe promisor being insolvent at tbe time of tbe assignment, or some act of tbe assignor to discharge it afterwards: Neither of which is alleged in tbe present case. And Clark, years after tbe assignment, became and is insolvent.
And tbe plaintiff, by receiving part of tbe money due on the note of tbe promisor, is considered in law as accepting him payor for tbe whole.