Watson v. Robinson

Perkins, J.

Assumpsit by the assignee against the assignor of a promissory note. The declaration contains two special and the common counts. The first special count alleges the, making and assigning of the note, and the insolvency of the maker at the time it fell due. The second alleges the making and assigning of the note, the absence of the maker from the state at the time it fell due, suit against him immediately on his return, judgment at the first term of the Court, execution, and a return of “no property,” &c. The pleas were non assumpsit, and several special pleas leading to issues of fact. The cause was submitted to the Court and judgment rendered for the plaintiff for the amount of the note. A motion for a new trial was overruled. (

The only question in the case is whether due diligence was used by the indorsee to collect the money from the maker of the note. This question arises under the general issue.

The following are the facts as they appeared in evidence: The pote in question bears date, Terre-Haute, March 9th, 1842. It fell due June 15th, 1842; and was assigned before due. On the 23d of March, 1842, the maker of the note left the state in company with one Helms, his partner, and went to Louisiana, they together taking with them produce of the value of 2,500 dollars. A part of this produce appears to have been soon sold in New Orleans, and the remainder was, in June, sent to Charleston, South Carolina, where it was sold and the proceeds returned to its owners by or before the 10th of August, 1842. At that time the maker of the note left New Orleans and proceeded to St. Louis, Missouri, at which place he disposed of all his funds in payment of other debts, and from which time he had no property with which the debt in controversy could have been paid, or any part of it. ’ He returned from Missouri to Terre-Haute on the 2nd of May, 1843, was sued on the 3d of the same month, and *387 regularly prosecuted to judgment and execution. It does not appear to have been known, at the time the maker left, he was going, the length of time he intended to be absent, nor that he was taking his property with him.

W. D. Griswold and J. P. TJsher, for the plaintiff. A. Kinney and S. B. Gookins, for the defendant.

It is not necessary to decide in this case, whether circumstances might exist that would render it the duty of an assignee to follow the maker of a note beyond the limits of the state, to entitle him to recourse upon the assignor. We are satisfied they do not exist in this case. We think the facts above stated show the use of due diligence, and that the plaintiff was entitled to his judgment.

Per Curiam.

The judgment is affirmed with 2 per cent. damages and costs.