¶1THIS was a suit by Morton, the assignee, against Cheek, the assignor, of a promissory note made by one McCray. The action was commenced before a justice of the peace and appealed to the Circuit Court. On the trial it was proved that the assignee had sued the maker and had execution issued in due time, and that the execution was returned nulla bona,.
¶2The defendant proved that the note was. given by McCray, in consideration of the sale to him of a house and lot, for the conveyance of which, to be made on the payment of the note in suit and another of equal amount, McCray held a bond executed by Cheek.
¶3The judgment was for the plaintiff.
¶4It is contended that the plaintiff did not use due diligence to collect the money of the maker because he ought to have instituted proceedings to enforce the lien which Cheek held on the house and lot.
¶5We think the judgment of the Circuit Court is, obviously, right.
¶6The judgment is affirmed with 10 percent, damages and costs.