Nixon v. Wethrich

Caton, C. J. This was an action brought against Nixon, as the indorser of a promissory note. The proof shows the recovery of a judgment against the maker, upon which an execution was issued, which was returned satisfied in part, and no property found to satisfy the balance. The proof in the case tends very strongly to show that the maker, at the time the execution was in the hands of the sheriff, was in the actual, open and notorious possession of an abundance of property, both real and personal, subject to the execution, out of which the amount thereof might have been made. The court instructed the jury that the plaintiff was entitled to recover in this action, unless lie knew the maker had property out of which the balance due on the execution might have been made. This instruction we think was wrong. The statute, giving the right sought to be enforced by this action, is this : “ Every assignor or assignors, or his, her or their executors or administrators, of every such note, bond, bill or other instrument in writing, shall be liable to the assignee or assignees thereof, or his, her or their executors or administrators, if such assignee or assignees shall have used due diligence by the institution and prosecution of a suit against the maker or makers of such assigned note, bond, bill or other instrument in writing, as against his, her or their heirs, executors or administrators, for the recovery of the money or property due thereon, or damages in lieu thereof. Provided, that if the institution of such suit would have been unavailing, or that the maker or makers thereof had absconded or left the State, when such assigned note, bond, bill or other instrument in writing became due, such assignee or assignees, or his or her executors or administrators, may recover against the assignor or assignors, or against his or their heirs, executors or administrators, as if due diligence by suit had been used.” It was admitted, by the instructions asked and given for the plaintiff, on the trial below, that the simple institution and prosecution of a suit to judgment, and the issuing of an execution against the maker, was not necessarily and of itself, conclusive evidence of due diligence to collect the amount of the maker, for the court instructed that if the plaintiff knew of property belonging to the maker, out of which the money might have been made, then he had not used due diligence, and could not recover in this action. So far as it went this was undoubtedly right, but it did not go far enough. The plaintiff was bound to prosecute a suit against the maker, with due diligence, not only to judgment but also to satisfaction. The intention of the law is that the amount shall be made of the maker, if by reasonable diligence that can be done. Due diligence means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. If for the want of such diligence the money is not collected of the maker, it is designed that the loss should fall upon the holder and not on the assignor. And this should be so. The hands of the assignor are tied up ; he has no control over the proceedings or the execution. Were the rule otherwise, by the neglect of the holder the loss of the debt might be thrown upon the assignor, for although he should go and pay up the amount at once, before he could get judgment against the maker to indemnify himself, the property which was ample when the first execution was out, might be beyond his reach. The instruction should have been, if the plaintiff, by reasonable diligence, might have known of property of the maker suEcient to satisfy the debt, then he could not recover. The judgment must be reversed and the cause remanded. Judgment reversed.