Thomas B. Crawford vs. Zachariah Berry, 6 G. & J. 63

Buchanan, Ch. J., delivered the opinion of the court. The first exception has been abandoned in argument by the counsel for the appellant, and properly abandoned. The suit is by the assignee of a single bill against the assignor, the obligee, on the failure to pay by the obligor t, and on the question of due diligence by the assignee in pursuing the obligor, the admissibility of parol evidence of the notorious insolvency of the obligor cannot be questioned.

Not that it might not be proved by other evidence, such as the discharge of the obligor under the insolvent law, or the return of “nulla bona” to a fi fa sued out on a judgment obtained against him upon the single bill by the assignee. The question presented by the second exception is of a different character.

The evidence is, that on the 12th of July, 1827, the appellee sold and delivered to the appellant certain oxen for the sum of $ 175, and on the same day received from the appellant, on account of that purchase, an assignment of a single bill executed to the appellant by John Magruder for $ 175, upon which the appellee brought suit against the obligor to the next succeeding term of the Prince Georges county court, and obtained a judgment in the regular course, with a stay of execution entered upon the docket for thirty days.

He afterwards sued out a capí as ad satisfaciendum, which was returned by the sheriff “cepi,” and entered on the docket “not called by consent of parties,” and that at the time of the rendition of the judgment, and continually afterwards, Magruder, the obligor, had no properly that could be levied upon, and was totally insolvent. Upon this evidence the counsel for the appellant prayed the court to instruct the jury that the appellee was not entitled to recover. 1st. Because he bad consented to take the judgment against the obligor in the assigned single bill, subject to a stay of execution for thirty days.

And 2dly, because the ca. sa. that was issued upon that judgment had been entered, “not called by consent of parties;” which direction the court refused to give; and to that refusal to give the instruction prayed, there would have been no objection, if the court could have stopped there. The declaration contains three counts. The first a special count, on the assignment of a single bill; and the other two, a general indebitatus assumpsit, for oxen sold and delivered, and a quantum valebant.

It is not a case between a surety and creditor, presenting the question whether the creditor has so given time to the principal debtor as to discharge the surety; but active diligence was imposed upon the appellee in pursuing the obligor for a recovery of the sum due on the bill assigned to him, so as that nothing should be lost by his laches. And the question is, whether he did use due diligence; which is a question for the decision of the court.

If the obligor, Magruder, had been notoriously insolvent at the time of the assignment, or had become so before the first term of the court after the assignment, so as to have rendered a suit against him futile, there would have been no obligation on the appellee to institute a suit, and incur the useless cost of a profitless action ; and having instituted a suit on the bill to the first term after the assignment, and obtained a judgment in due and regular course of law, if Magruder was notoriously insolvent at the time of the rendition of the judgment, and has continued so ever since, and no loss has accrued either by reason of the judgment being taken with a stay of execution for thirty days, or of the ca. sa. being entered “not called by consent,” neither the entry of the stay of execution, or of the ca. sa. not called by consent, nor both, had the effect to discharge the appellant, the assignor of the bill, from any liability that before existed on account of the sale of the oxen.

If Magruder was at the time of the rendition of the judgment, and continually afterwards, “wholly insolvent, and had no property that could be levied upon,” the suing out an execution would have been nugatory, and the stay of execution did no injury to any body, and the appellee was under no necessity to pray him in commitment on the return of the ca. sa., and have him put to jail, where under the law of this State he must have been supported at his cost without benefit to any one. Nor need he have sued out a ca. sa. at all.

A fieri facias with the return of nulla bona, which must have been made if Magruder was insolvent, and had no property to be levied upon, would have been sufficient. The court then did right in refusing to instruct the jury, that upon the evidence in the cause the appellee was not entitled to recover.

But the court went further, and instructed the jury, “that if they should find from the evidence that at the time of the rendition of the judgment, and the return of the ca. sa., and entering it not called, Magruder was insolvent, and incapable of paying his debts, and has continued so ever since, the appellee was entitled to a verdict, for such sum as they should find due from the sale of the oxen.” Thus assuming the fact of the sale of the oxen, and that the assignment of the single bill was on account of the prior debt so incurred, which were facts to be found by the jury.

If the appellee sold the oxen to the appellant, and received the single bill of Magruder on that account, without an agreement to receive it as payment for the oxen, and to run the risk of its being paid or not, it was not an extinguishment of the debt due for the oxen, which continued liable to be enforced if the assigned bill, without laches on the. part of the appellee, should not be paid. Glenn vs. Smith, 2 Gill and Johns. 432.

But whether that was the character of the transaction, or whether the oxen were exchanged for the bill, or the bill was purchased from the appellant by the appellee, and the oxen given as the consideration, were questions for the jury, and not the court, to decide. We think therefore, that the instruction of the court to the jury, as set out in the second bill of exception, was wrong, and that the judgment must on that account be reversed, and the cause sent back with a procedendo. JUDGMENT REVERSED AND PROCEDENDO AWARDED.