William Johnson

“ The next inquiry is, therefore, has the law creating this liability of the assignor been complied with?
The assignee ought to take every compulsory process of law against the original debtor, until his insolvency is established; or the suit and all incidental remedies are found insufficient to coerce payment. Smallwood vs. Woods, 1 Bibb, 546.
To omit holding to bail, when bail is of right demandable, if on a ca. sa. the return is non est inventus; is negligence. 2 Marshall, 197.
The assignee is bound to issue a fi. fa. and a ca. sa. all if the debtor is not found, to proceed against the bail. ”

“ All such are therefore parties interested in the proceeding; and if the consent of the creditors can give the right to discharge, all should consent. The assignor should have consented, as his responsibility became consummate by the discharge.
The consent of the counsel for the appellants, alone gave jurisdiction to the district court; or was so considered. If it did not, where is the prisoner? The discharge being illegal, he has escaped, and may be pursued and retaken, or the jailor was liable. ”

“ This being decided by the Supreme Court of the United States, as well as by the tribunals of Kentucky, there can be no doubt that the present is a case for equitable jurisdiction; being the case of a remote, and not of an immediate indorser; there is no jurisdiction at law.
That the bill was without equity is supposed to be made out, because Hanna, a subsequent indorser to Weisiger, was not first prosecuted to insolvency, and because (as alleged) there was no consideration from the bank to Weisiger. ”

“ Such instruments are not negotiable by the laws of Kentucky; the statute of Anne never having been in force in that state. The party who sues may do so upon a statute of Kentucky, which authorises the suit in the name of the assignee, but goes no further.
The true principle upon which the responsibility of the assignor depends, and upon which it can alone be supported, is the general liability to refund that which he may have received, on a consideration which has failed. 1 Bibb, 545. ”

“ The most material point in the cause, and that on which the decision below was rendered in favour of the defendant, was the want of due diligence against the drawer of the note. The law is settled there, as it is in Virginia, and in this Court, upon Virginia contracts of this description; that every reasonable effort must be made to recover of the drawer by suit, before the assignee can have recourse against the assignor or indorser. ”

“ The bare speculative idea, then, of a possible acquisition of property within the thirty days, during which Voorhees might have been compelled to await the will or inquiries of his creditor, and of property not tangible by the process of the law; is too feeble a consideration to affect the rights of the complainant. ”

“ The fi. fa. did not reach the office of the marshal until three weeks after; and the ca. sa. was not sued out at the time when the fi. fa. issued. But it was sued out at the term to which the fi. fa. was returnable, to wit, on the 11th of April 1822. So that from the time the note fell due, to the last step in the progress of judicial means for enforcing payment, we count but six months and a half. We do not recognise the supposed obligation or power of the party, in the circuit court, to sue out the ca. sa. contemporaneously with the fi. fa. ”

“ The fact of Voorhees's insolvency is established by the oath taken by him before the district judge, which is at least prima facie evidence, and sufficient until the contrary appear, as well as by the return to the fieri facias; and that fact being established is sufficient to entitle the complainant to recover: For,
5. The discharge could not prejudice the indorser. His cause of action against the drawer will accrue by the payment of the money, and be unaffected by the discharge. ”

“ His authority was to administer the oath; but the act of congress directs him not to do so until after thirty days. The period of thirty days is given for the benefit of the creditor, and of those who are interested that the debt should be paid. ”

“ Many men are insolvent. This reconciles it.
Smith vs. Blunt, 2 Marsh. 522. 1820.-Omitting to issue a ca. sa. for five months after the return of the fi. fa. is an unreasonable delay, and discharges assignor. Note. There appears to have been some interval between judgment and fi. fa. Certificate of discharge as an insolvent debtor in another suit, is not evidence, as he is liable to be imprisoned in other suits.
Parker vs. Owings, 3 Marsh. 59. 1820.-Assignor not liable, though drawer has taken the oath and surrendered a schedule ”

“ But such return on an execution, directed to a county where he does not reside, is no evidence of insolvency. The assignee must use due diligence to recover the money from the obligor; if he do not, and debtor become insolvent, he makes the debt his own.
Thompson vs. Caldwell, 2 Bibb, 290. 1811.-Suit against two obligors, (first one and then the other added,) fi. fa. against one, and afterwards ca. sa. against both. Sheriff returned that he had taken defendant and released by county court. Held not sufficient against assignor. Ought to have been a fi. fa. ”

“ Doubt, as to power of court.
M'Ginnis vs. Burton, 3 Bibb, 6. 1813.-Assignee of note (bond,) holding up for ten months without bringing suit, and not accounting for delay, guilty of negligence. Staying execution by plaintiff, after property seized by sheriff, discharges assignor. Replevying debt is conclusive evidence of solvency at the time, and if bond afterwards quashed for irregularity, remedy is against officer, and not assignor. (Seems otherwise, 2 Litt. 132, post, in this note.) he perceived in them nothing which appeared to him to interfere with the complainants' right to recover. ”