Lewis ex rel. Ringgold's Adm'r v. Hoblitzell's Admr's , 6 G. & J. 259 ( 1834 )

Chambers, J.,

delivered the opinion of the court.

It is clear that the assignment of Hoblitzell to Lewis, by the express terms of which, he made himself responsible for the ultimate payment of the debt assigned, would subject Hoblitzell to an action at the suit of Lewis, in the event of Lewis’ diligent prosecution against those who stood before Hoblitzell in the order of liability, or by showing an excuse for, or in other words, the inutility of such prosecution.

We think that Ringgold, being in point of fact the equitable assignee of Lewis, the suit might well be instituted in the name of Lewis for his use. Much argument has been urged on one hand to sustain, and on the other to resist the proposition, that the obligation of Hoblitzell did not arise until an effort had been made to enforce the demand against Anderson, as well as against the mortgaged premises. Upon this proposition it will be unnecessary for us to express an opinion, as our decision will be given upon grounds not involving its justness.

It cannot be controverted, that before the liability of HobUtzell could accrue, it was necessary to use due diligence against Russell, or to account for the want of it, by proof of his entire inability to pay.

That no suit has been instituted against him on these bonds is admitted, and therefore due diligence is disclaimed ; but it is said, that “facts and circumstances” set forth in the case stated, prove an excuse, by shewing his inability to pay. The parts of the record to which we are referred, and in which alone, any thing can be found, having any reference to this subject, are first, the certificate of the clerk of Frederick county court, in these words: “I hereby certify that it appears on the docket of August court, 1824, that Robert G. Russell, has had a personal release under the insolvent laws of this State, and that he again applied for the benefit of the insolvent laws of this State, on the 13th of March, 1830. That his day for appearance is on the second Monday of December, 1830, and by his schedule, has made return of no property, except what is in the constable’s hands, taken under distress for rent. Test, John Schley, Clerk.”

Next, the statement of Swearingen’s proceedings as agent of Ringgold, the assignee, who “caused a suit to be instituted in 1823, in Alleghany county, against Hoblitzell,” which was an action upon the assignment of another bond, and in which action the plaintiff was non-suited; and another suit in Frederick county against Russell, in 1823, which was an action upon another bond, and upon which bond judgment was obtained, and no proceeding by execution issued — “And went to Bedford, Pennsylvania, and employed counsel to proceed on the mortgage, and against Anderson. That he resorted to all the efforts aforesaid, wishing to obtain all the money from Anderson, rather than resort to Hoblitzell; and that he directed his lawyers to proceed as fast as possible in the business aforesaid,” which we are asked to connect with a prior part of the case stated. “That nothing was ever received from said Russell, on either of said bonds, except from the sale of the mortgaged premises in Bedford.”

We have no means of determining the date of the clerk’s certificate, except that it speaks of the application in March, 1830, in the past tense, and not so of the day for appearing in December, nor is the purpose avowed for which it was introduced. We áre also left to conjecture to which of the two applications it intends to attach the “schedule” spoken of. It would seem to be a part of the proceedings of 1830, as the certificate says, the property returned thereby “is” in the hands of the constable. The certificate therefore proves nothing in regard to the property held by Russell, when the “personal discharge” was obtained, nor does it deny that he returned a schedule, or if any, to what amount. He might have had ample estate to pay all his debts in the year 1824, 1825, and 1826, and to the institution of this suit, and it might have appeared even on the face of his schedule, returned when he obtained the personal release, that he had large and ample funds, and yet every word in the certificate be literally true.

The proceedings of Swearingen, the agent, and every thing stated in regard to them, are as inconclusive as the certificate, and the history of his acts and directions may be strictly given in the statement, and yet leave it entirely possible that Russell was solvent, and the additional fact that nothing was received from Russell, does not supply the chasm, or constitute the conclusive proof of inability to pay on the part of Russell, which alone can avail the party, in a special verdict or case stated. The circumstances might probably have induced a jury to infer the insolvency of Russell, although we cannot but think it would have been prudent to aid them by some little evidence from individuals, who residing in the vicinity and acquainted with his pecuniary condition, might speak to the fact of his haying property, in terms at least as satisfactory as these ^circumstances” do.

The cases in this court are full in regard to this matter. In Reeside vs. Fisher, 2 Harr. and Johns, 320, the Replevin was issued and served on the 4th of March, 1824. The defendant justified as deputy Marshall under a seizure made in virtue of a fieri facias, which issued on the 18th of December, 1823, and was returnable on the first Tuesday'of March, 1824. These facts appeared in a case stated, and the court would not infer that the property thus seized, remained in the defendant’s hands, as deputy Marshall, the case stated, not expressly asserting it; because it might be that the goods had been sold, and left in the defendant’s hands by the purchaser, or that the debt had been paid, and the goods permitted to remain by the owner, consistently with any thing appearing on the statement. In Hysinger vs. Baltzell, 3 Gill and Johns. 158, the court would have imputed laches, if it had been alleged in the case stated, “that the defendant was in Baltimore for two days, and that the plaintiffs knew he was there for that space of time,” but it being only stated, that the defendant was in Baltimore, purchased goods from the plaintiffs, and remained there two days, the court thought it consistent with the statement, that the purchase of goods might have been immediately before the defendant left Baltimore, and therefore without enabling the plaintiffs to sue out a writ with effect, the omission to do which, was charged as laches.

The pervading error in the case at bar is, that the “evidence of facts,” is set out instead of the facts themselves. The statement furnishes little else but evidence. If all the facts upon which the law is claimed, cannot be agreed, a jury should be called. As the judgment of the county court should have been for the defendants on the facts as stated, and cannot be complained of by the plaintiff, but is erroneous as to the defendant below, we affirm the judgment on the appeal of Lewis use of Ringgold’s Adm’r, and reverse it, and order a procedendo in the case in which Hoblitzell’s Adm’s are the appellants.