Halifax,

October Term, 1799.

John Lours Taylor, John Haywood,

#### Plummer vs. Christmas.

f^HRISTMASS, about five years before the institution of this- ^ action, assigned a bond to Plununer, wherein Willis was the obligor. The debt secured by this bond, was further se - cured by a mortgage on a tract of-land.

Per curiam;

-Where a -negotiable paper is assigned as a bill of exchange or the like, that.transaction is regulated by the law of merchants ; and by that law the assigoe must apply in a reasonable time for payment ;. and if payment be refused or delayed, notice thereof must be given in reasonable time ; and in failure of a compliance with these conditions, the assignee cannot in general maintain his action. He cannot maintain it in any case, unless be shews the drawee had not any oi the effects ©f the drawer in his possession. But in case oi unnegotiable papers actually assigned, the law is otherwise, being constructed upon principles of natural justice and equity. The holder of the paper must apply iu reasonable time and give notice of nonpayment. La reasonable time ¡, and in failure thereof, if a loss of-*108the debt actually happens, the holder oi the paper shall bear it 5 justice requiring that he by whose negligence a loss has happened, shall suffer by it ; but if no loss has actually happened, the assignee may recover the debt oí the assignor, although he has not given notice of non-payment in reasonable time. Me may return the paper when he cannot procure the obligor to pay it, Here is no loss of the debt, which must fall either upon one or the other: for though Willis, the obligor, is insolvent, yet Christmass, the assignee, is safe by means of the mortgage.

Verdict and judgment far the pLdnt'.sT;