Henry Baldwin

“ The law of Kentucky gives the use of the prisons of the state to the United States; and declares it to be the duty of the jailor to receive persons committed under the authority of the United States, and to keep them until discharged according to law, 2 Dig. 679; and the jailor gives bond with sureties.
The statute of Kentucky abolishing imprisonment for debt, does not operate upon the process of the courts of the United States. The justices had no colour for the jurisdiction they assumed.
The plaintiffs have a remedy for the escape, and no person but the plaintiffs can pursue it. ”

“ The United States have no prison in Kentucky, nor is the marshal furnished with any place of imprisonment in Kentucky, under his own jurisdiction. The jailor is not of his appointment. The moment he delivers a prisoner to the jailor, his authority is at an end. ”

“ A judgment does not bind land in that state; the lien attaches only from the delivery of an execution to the sheriff; it then binds real and personal property, held by a legal title. An execution returned, is no lien on any property not levied on; and no new one can be acquired until a new execution is put into the hands of the sheriff; and none can issue while a former levy is in force. 6 Kentucky Digest, 485, sec. 8. Any delay then by the assignee enables the debtor to acquire, hold or aliente his property in the interval between judgment and the execution reaching the sheriff ”

“ If it is not going beyond the principles of the common law of England and this country, it is at least extending them to their utmost limits, to say that the assignor of a note, without fraud, or a promise to pay in the event of the insolvency of the drawer, should be liable by the mere effect of the assignment ”

“ That the assignee is not bound to run a race against time, or to use extraordinary means; that he is not required to prosecute a drawer or obligor farther than a man of ordinary prudence and diligence would do in a case where he was solely and exclusively interested. But in order to bring himself within these rules, he must commence a suit against the drawer at the first term after the note becomes due, if a judgment could be obtained then. ”

“ The assignee cannot maintain an action on the mere non-payment of the note and notice thereof, or of a protest to the assignor, until the holder of the note has made use of all due and legal diligence to recover the money from the drawer. But if this fails, then the assignor may be resorted to on his assignment; which is held to be an engagement to pay the amount of the note, if after due and diligent pursuit, the maker is insolvent. ”

“ As to the obligation to pursue the officer for an escape, the claim is ungracious, after charging the plaintiff with the length of his pursuit.
No decision was ever yet made upon which the position assumed rests. If there is no decision, there is no such obligation. The law of the case is one of judicial proceedings. No law exists, unless found in these decisions. But it has been decided that the holder of a note is not bound to pursue extraordinary remedies. ”

“ The return of nulla bona to an execution, is, in that state, evidence only of there being no property of the debtor on which a levy can be made. It is not evidence of there being no equitable interests, which are beyond the reach of legal process; or of his not having that kind of property on which no levy can be made. A debtor, confined by an execution from the federal courts, can only be discharged under the insolvent act of congress passed January 1800 ”

“ Magruder, that where a drawer of a note dies before it becomes due, and the indorser administers on his estate, demand of payment and notice to the indorser are indispensable. No decisions in Kentucky on assigned notes establish a more rigid doctrine than is applicable to indorsers by the law merchant. In such cases demand and notice are required to fix the indorser, because the debtor may pay by the interference of friends ”

“ So much for the delay between judgment and capias ad satisfaciendum on the note of three thousand nine hundred dollars, by Miller to Gray, who assigned to Tyler, who assigned to the bank.
The two notes, and the process upon them, cannot be brought to the aid of each other. The parties are different, and each must be pursued independently. 2 Marsh. 523, 198, 199. Upon the principles already stated, and supported by authorities, the proceedings against the maker of the note for three thousand eight hundred dollars, are liable to charges of the most gross and entire negligence. ”

“ We think it is not an open question, whether these principles shall be respected by this court; and cannot feel authorised to depart from them in a case to which their application cannot be questioned. ”