4 Ky. 542 | Ky. Ct. App. | 1809
OPINION of die Court, by
Small-wood declared, as endorsee of an obligation, against ^°°⅜ as endorsor, that he had sued on said obligation and recovered judgment, and, having used due diHgence, had failed to receive satisfaction, of which 00^s b^d notice, &c. ; and the said Woods “ then and there assumed upon himself to pay the said sum of £. 30, together with the sum of 1 dollar 5 cents, the ount of the damages and costs that the said plaintiff, o ... 1 - ’■ by the endorsement aforesaid, ought to recover from the said Clay,” (the obligor in said assigned obligation,) "d'ienever he should be thereunto afterwards required, Nevertheless, See. He also counted against Woods for money had and received.
Upon non assumpsit, the jury found “ that the plain-, tiff has used the several steps and proceedings, against the said Samuel Clay, in the declaration mentioned, .^ich are set forth in the record of the suit in Tessa- . , „ mine between said plaintiff and said Clay, defenaant, a copy whereof is filed herewith, and that he hath used n0 other steps to recover the money of said Clay, or his special bail ; and if the steps and proceedings amount: to due diligence on the part of the plaintiff, they find f°r 44 dollars 33 cents in damages ; but if they do not, &c. they find for the defendant.” Upon this ver-diet, the court gave judgment for the defendant ; to which the plaintiff prosecutes this writ of error, assigning for cause, “ that the court erred in giving judgment for the defendant on the special verdict, -- when tbs Uw was for the plaintiff, and judgment should have been rendered for him.”
The assignment does not question the sufficiency of the sPectal verdict; and the parties in this court have made no other questions, as growing out of the record alluded to by the jury, than these :
Ought the plaintiff to have taken a capias ad satisfa-ciendum against Clay ; and if the sheriff had returned thereto, non est inventus, should the plaintiff have pro-ceeded against the bail, to have made out a case of clue diligence, whereby to entitle him to recourse against thi assiCflirT ? . °
If the liability of the assignor of an obligation or promissory note by contract implied by law from the insolvency of the maker, was a new subject, to be settled for the first time by this court, we should have great difficulty in making out such liability, where there had been no unfairness or misrepresentation.
But it is necessary to a decision upon the question of due diligence, to trace the responsibility of the assignor to its source, and find out the general principle upon
A debtor may remove his goods and effects out of the sheriff’s bailiwick ; a return of nulla bona upon the peri facias is not evidence of the debtor’s having no goods in another county. The debtor may have means of payment which cannot be reached by the peri facias ; the law gives an execution against his person, to compel him to surrender his effects or pay the demand. The special bail, or bail to action, is a security against the debtor’s removal of his person beyond the jurisdiction of the court. If to omit holding to bail, where bail is of right demandable, would be deemed negligence, in case the debtor should be returned non
The jury have found that the assignee used the steps contained in the record, and no other. That exhibits a judgment and two writs of fieri facias to the same county, returned “ no goods no capias ad satisfaciera dum had been taken, bail had been given and was responsible, according to the condition of his recognizance, for the surrender of the debtor, or payment of the debt. In case the debtor had been demanded, the bail might have caused him to pay, or to surrender himself in execution, which might have compelled payment. The jury have found nothing to excuse the asr signee from proceeding farther than he has done ; they have found nothing which would create an inference that a man ordinarily prudent and attentive to his own affairs, would not have proceeded farther. The record alluded to is no evidence of the insolvency of Samuel Clay, and therefore did not authorise a judgment in far vor of the assignee against his assignor.
The opinion of the court being with the defendant cn this point, it is unnecessary to notice other points which might otherwise have been called into view,,
Judgment affirmed.
The fupreme court of Néw-Jerfíy, upon folemo argument, decided that an affi^nor, (without fraud, deceit, exprefs warranty or fpecial undertaking,) of an instrument not negotiable by the law merchant, was not icfponfible to the afíignee in cafe the debtor proved infolvent. The cafe of M'Kie’s executor Davis, 2 Walfh» 219, and the authorities there cited, are reviewed, and the cafe overruled. The cafe as reported by Pennington, 1 vol. p. 20, Garretsie vs. Van Ness, is worthy of the attention of the profeiTion, for the learning and ability uiTplaved on the queftion. See, alfo, fame vol. p. 158 — Vide 32 Modern 554—1 Ld. Raym. 443, Lambert vs. Oakes—2 Ld. Raym. 757, Clarke vs. Martin—774, Burton vs. Sowter—825, Williams vs. Cutting—6 Mod. 29, Buller vs Crips—2 Black. Com. 455— Wood’s Inft. 281.2,—Carth. 269, 510-Cro. Car. 301-12 Mod. 380,
23 Wall 219.
Pr. Dec. 152.
<a) Ante 239.
Har. 160.
Han 561.