Beach v. Bates

The opinion of the court was delivered by Williams Ch. J. — The terms of the warranty, according to the authority of Foster v. Barney, imposed on the plaintiff the duty of commencing a suit on the note and pursuing it to judgment, without any unreasonable delay. If, after commencing the suit, it should fail, i. e. prove ineffectual, from the fault or omission or neglect of the party, and thereby the debt should be lost, the loss should fall on the party in fault. Such was the decision of the court in the case of Wheeler v. Lewis, 11 Vt. R. 265. Whether the plaintiff was under obligation to attach property is, in a measure, immaterial, though such was the understanding of the parties and the direction of the defendant. The plaintiff did attach property sufficient to satisfy the debt and failed to [72] collect the note on account of the defective service of the writ. The loss, therefore, should be his. It is of no importance that the defendant was a witness in the trial of the case. If he was called upon and testified truly, he did what he ought to have done. Neither can it relieve the plaintiff that the defendant was apprised of the mode in which service was to be made before the writ was served or returned. The suit was to be brought and controlled by the plaintiff, and it appears that the defendant did inquire why a proper officer was not employed to serve the writ, and was informed by the attorney for the plaintiff that a deputized person would answer just as well. Judgment affirmed.