Mandeville & Jamieson v. Alexander Mackenzie, 1 Cranch 23

Ceanch, J. The contract of the assignor is to this effect, that he will repay the money to the assignee if the assignee cannot obtain the money from the promissor, having used due diligence therefor. The plaintiff, to entitle himself to recover, must make out his case; that is, he must show that he has not obtained the money from the maker of the note, and that he has used due diligence.

It is admitted that a suit, prosecuted to judgment and execution, is, in Virginia, a necessary part of that diligence, (unless, perhaps, it can be shown that the maker was insolvent, or had run away,) but it is not the whole of due diligence. The plaintiff must show further that he prosecuted his suit in a reasonable time, that the execution has been delivered to the proper officer to be served, and that it has been ineffectual. This I take to be as necessary a part of the plaintiff’s ease, as it is to show that he brought a suit; for the defendant’s engagement is only conditional, and the condition is precedent.

The jury have not found at what time the suit was brought against Mclver, but they have found that it was not brought before the 30th June, 1797. They have not found that any execution was taken out upon that judgment, nor have they stated whether Mclver became insolvent before or after the judgment was rendered against him. They have only found that he became insolvent before the suit was brought against the present defendant, McKenzie.

The fact of due diligence must have been necessarily in issue, as part of the plaintiff’s cause of action, and the jury not having expressly found that due diligence was used, and not having found facts enough for the Court to decide whether such diligence was used or not, I think a venire facias de novo ought to be awarded. Kilty, C. J., and Marshall, J., assented. The authorities cited were, Lee v. Love, MS., (since reported in 1 Call, 497,) ; Kyd, 208; Strange, 745; 1 Wilson, 48; 1 T. R. 167; 1 Salk. 132; Mackie v. Davis, 2 Wash. 219; 2 Lord Raymond, 758 ; 3 Burr. 1522; Kyd, 165; Buller, N.

P. 271; 2 Str. 1145.