Bullitt v. Scribner

Blackford, J. This judgment is founded upon the idea, that cases of this kind must be governed by the lex mercatoria of England. We are of opinion, however, that the law of our country is otherwise. Supposing the law merchant to be a part of the common law, and adopted into our code, still that does not prove the correctness of the judgment before us. Promissory notéis were not governed by the law merchant, until they were put upon a footing with bills of exchange, by the statute of Anne (1). That statute was never in force in this state. Our act of [15] assembly upon the subject provides, that the assignee, having used due diligence to obtain the money from the maker of the note, without effect, may maintain an action against the assign or (2). The enquiry here is not, as in England, whether the rules of the law merchant have been pursued, but whether the assignee has used due diligence, without effect, to obtain the money from the maker of the note. The law of Virginia is similar in principle to ours. There the general rule is, that there must be due diligence by a suit at law against the maker of a bond or note. Mackie v. Davis, 2 Wash. Rep. 219. — Lee v. Love, 1 Call’s Rep. 499. And in Goodall v. Stewart, 2 Hen. and Munf. 105, a return of nulla bona to a fieri facias, duly issued, was held sufficient. In the case before us, the assignee commenced suit, obtained judgment, and issued a capias ad satisfaciendum, in due time against the maker of the note, who was committed to gaol on the execution, and afterwards discharged under the act of insolvency. It is objected that the execution should have been a fieri facias, but we see no ground for the objection: it does not appear b.ut that the course pursued was a judicious one, and that the kind of execution which issued, was as well calculated as any other, to ensure satisfaction of the judgment. According to the facts of this case, as set out in the special verdict, the plaintiff was entitled to thejudgment of the Court. Hurst, and Ferguson, for the appellant. Dewey, and Moore, for the appellee. Per Curiam. The judgment is reversed,, with costs, and the cause remanded for further proceedings, not inconsistent with this opinion. Footnotes [(1)] Vide appendix to 1 Cranch, 367, where the reporter attempts to show, that the stat. 3 and 4 Anne, is merely declaratory of the former law. The current of authorities, however, both before and Since the statute, it is believed, accords with the doctrine in the text. Clerke v. Martin, 2 Ld. Raym. 757. —Buller v. Crips, 6 Mod. 29. — Trier v. Bridgman, 2 East, 359, where Ellenborough, C. J. says, the stat. 3 and 4 Anne, c. 9., first gave an action upon such an instrument; before which, neither the payee nor indorsee, could have sued the maker on the note. Vide Blandkenhagen v. Blundell, 2 Barnew. and Ald. 417, to the same effect. In Ind. promissory notes, payable at a chartered bank, within the state, are placed on the same footing as inland bills of exchange, according to the custom of merchants. Ind. Stat. 1823, p. 330. [(2)] Ind. Stat. 1817, p.233. — Acc. Ind. Stat. 1823, p. 330.