Merriman v. Maple

Scott, J. Assumpsit by the assignee of a sealed note against the- assignor. Plea, non-assumpsit; issue; and judgment for the plaintiff. Two other pleas were rejected on demurrer. We learn from the record, that the note was made by Skinner, payable to Merriman twelve months after date, and assigned by Merriman to Maple before it became due. The note became due on the eighth of August, 1821. On the tenth of September following, Maple sued out of the office of the Franklin Circuit Court a writ of capias ad respondendum against Skinner, returnable on the first Monday of October, which writ was returned non est inventus. On the sixth of October, an alias capias [351] issued returnable on the first Monday of March, 1822, which was returned executed, and judgment was rendered at that term for the plaintiff. ■ Several executions were issued on the judgment and returned nulla bona. Maple, the assignee, then brought this suit and obtained judgment. Wick, for the plaintiff ■Fletcher and -Merrill, for the defendant. The complaint is, that due diligence was not used by Maple to obtain the money from Skinner. The liability of the assignor depends on the fact, that the assignee* after having used due diligence, has failed to obtain the money of the maker of the note. Had the assignee, notwithstanding the delay, succeeded in bringing Skinner into Court at the first term after 'the note became due, the assignor would have had no ground of complaint; but as the assignor had parted with the note, and had no more control over it, he had a right to require evidence that the’ assignee had -commenced suit in due time, and had used all the means in his power to obtain judgment at the first term; or that he should show some reason why an earlier proceeding was impracticable, or, if practicable, that it would hafe been unavailing. A delay of upwards of thirty days, without any reason to justify or excuse it, is not, in our opinion, consistent with that due diligence which the law requires in such cases. If a man choose to sleep on hiss rights, he must do so at his own risk, and not at the hazard of his neighbour; Per Curiam. The judgment is reversed with costs.