Cavanaugh v. Tatum , 4 Stew. & P. 204 ( 1833 )

Saffold, J.

The revision of -the judgment of the county Court, on the certiorari, involve.-! the construction of the statutes of 1027 and 1020, respecting the liability of indorsers of notes, &c., for sums not exceeding fifty dollars.

Two points are relied on, by the plaintiff in error, for a reversal of. the judgment below—

1st. That the Court erred as stated in the bill of exceptions.

2d. That there was error in sustaining the plaintiff’s demurrer to defendant’s first plea.

Noticing the latter first, it is sufficient to say, it presents the question, whether if the holder of an indorsed note neglect or omit to use the diligence required by statue, to make the money out of the maker, before suing the indorsor, the latter can avail himself of this matter of defence by special plea in bar; and also, whether the matter pleaded, that the maker, at the time of indorsing the note, was a resident of the county, engaged in business, and was possessed of property more than sufficient to pay the debt, which remained subject to attachment, &e., constitute a legal ground of defence ?

The diligence required by statute was prescribed in lieu of the common law requisition of early demand of payment from the maker, and notice to the indorser, and also for the better protection of the latter. So far as the certainty of a declaration is required in the Circuit or County Courts, for the trial of appeals from the judgments of magistrates, the plaintiff must set forth a legal cause of action in his declaration or statement. To do this, before the statute, it was necessary, to charge an indorser, that the plaintiff should aver a demand and refusal: since the statute, it is equally necessary he should aver a compliance with the substituted requisition, and make proof thereof; else, he can not recover.

In this case, the plaintiff has averred, that before the expiration of thirty days after the note became due, he sued Ashly, the maker, and that he could' not be found, but had gone to parts unknown. Under the general issue, to these averments, the plaintiff should have been held to all the proofs of diligence, contemplated by law, before he was entitled to recover.

Hence, the special plea was, at best, unnecessary; but, were it admitted, that the defendant in this case, as in many others, had his election, either- to plead specially, or avail himself of the same matter under the general issue; yet, there was the farther objection, that it was not single and certain, or sufficient, in substance; but complex, in the averments, stating not only, that the defendant was a resident of the County, but, that he was engaged in business, and possessed of property, which was subject to attachment; that his absence was temporary, on business, and that he shortly returned, and went at large: facts, which, if true, would constitute no defence. — >

In this view of the question, there is conceived to have been no error, in sustaining the demurrer to the special plea.

The remaining question is, that presented by the bill of exceptions. The Court refused to instruct the jury, that the return, .on the justice’s warrant, of non est inventus, could not legally have been made, on the day the constable received it: but charged them, that no evidence of diligence, on the part of the plaintiff, in suing, or effecting service on the maker, was necessary, on the issue submitted.

The statute requires, that the suit should have been instituted within thirty days, unless the maker was absent from his place of residence; or some of the other exceptions, therein provided, should occur. This requisition being contained in the act of 1828, reference to that of 1827, will show that one is amen-datory of the other; and that the course prescribed by the two, for fixing the liability of indorsers, for sums not exceeding fifty dollars, is not only, that suit shall be commenced within the thirty days, where there exists no cause to excuse it; but, if practicable, by the use of the usual diligence, the claim against the maker shall be prosecuted to a return of nulla bona, on the execution against him,— This return on the fi. fa. is expressly made evidence of the maker’s inability to pay ; and the consequent right of the holder, to pursue the indorser. Not so, with respect to the return of non est inventus, on the original process. Causes may exist, under the statutes, to excuse the institution of any suit against the maker in like manner, as they may occur to excuse any, demand of payment, at common law.

The return, on a warrant, that the defendant is-not to be found, if admissible as evidence, on an issue of this kind, is, by no means, conclusive of the fact.

Had the statute required such return, only, as the authority for a suit against the indorser, he would, then, have been compelled to submit to it; and, if false, to prosecute his remedy against the officer, for making it.

But, as the law stands, proof aliunde, may excuse the entire omission to sue the maker, or the failure to cause service of the process upon him; and such is necessary and admissible, either to establish or disprove the ground of exception, to the necessity of prosecuting him to nulla bona.

The return of non est, by the officer, on the day he received the warrant, was no compliance with the law: it ought, at least, to have been shewn, that after reasonable diligence and inquiry, the defendant could not be found in the County of his residence, during the term allowed for the return of the process; and this proof was no less necessary and proper,' under the general issue, than under a special plea, had one been properly in issue.

On this point, therefore, the judgment must be re^ yersed, and the cause remanded, if desired,