7 Blackf. 532 | Ind. | 1845
— This was an action of assumpsit brought by Wilson against Black. There are two counts. The first is on the assignment of promissory note executed by one Fleming, to the defendant, and alleges the notorious insolvency of Fleming, at the time of the assignment and until his death, as an excuse for the plaintiff’s not having sued him. The second count is for money had and received, &c. Plea, the general issue. Verdict for the plaintiff. Motion for a new trial overruled; and judgment on the verdict.
The only evidence of the maker’s insolvency is, that his personal estate at the time of his death, which occurred on the fifth day of the term of the Court next after the assignment was made, was not sufficient to pay all his debts; and that his real estate did not sell for enough to pay the liens which were on it at the time of his death. The note, which was previously due, was assigned about the 15th of December, 1839, and the next term of the Court commenced in March, 1840.
The Court instructed the jury as follows: If the plaintiff, by ordinary diligence, would not have'been able to obtain judgment against Fleming, he is entitled to the same rights against Black as if he had brought suit against Fleming. And the jury may determine, as to this question, by the fate of the suits brought by others against Fleming.
We are of opinion that if the plaintiff, by ordinary diligence, could have recovered judgment against the maker previously to the fifth day of the term, on which day the maker died, he is not excused for not suing. The reason is, that the liens on the real estate, their dates not being shown, may in that case have been created after the time when the judgment might have been recovered. And if an execution on the judgment when so recovered, could have been put into the sheriff’s hands before the fifth day of the term, suit should have been brought, because the maker died possessed of considerable personal property, though not sufficient to pay all his debts.
The Court informed the jury, in the latter part of the instruction cited, that they might determine the question, as to whether such judgment could have been so recovered, by the fate of the other suits. In this, we think, the Court erred. The abatement of the other suits did not, of itself, show that the plaintiff would have failed. The plaintiffs in those suits may not, for instance, have used ordinary diligence. We all know that, under certain circumstances, the judgment might have, been obtained, and execution put into the sheriff’s hands, before the fifth day of the term. If there were circumstances to prevent such judgment and execution, the plaintiff ^should have shown them.
The plaintiff contends that a judgment would not have been a lien on Fleming’s real estate, had it been recovered; and refers to Berry v. Marshall, 1 Blackf. 340. That case was decided under the statute of 1821. But the law is changed. The act of 1838, which governs this case, pre
— The judgment is reversed with costs. Cause remanded, &c.