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ere were at the date of the assignment cement of the term, and but 27 for or judgment at that term. Process ese days, leaving only 4, or at and it was not served within dgment at the first term ere was judgment at the was returned nulla bona, the inst the assignor. Bays v. Pat

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as been repeatedly said, is required to diligence, nor indeed extraordinary dilithat measure of diligence which a prudent e expected to use in the case, if he were solely It cannot be said that the delay of a few days, still ample time, upon all reasonable calculation, service of process, would evince either a disposition not to obtain a judgment at the first term, or a want of ordinary prudence in taking the steps requisite for that object. McMurray v. Wood, 9 Dana 46. Reasonable diligence was used by an assignee, who commenced his suit more than 40 days before the commencement of the first term after the maturity Latham v. Western, 8 B. Monroe 299.

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When the assignment is accompanied by an agreement, or directions on the part of the assignor, that before resorting to coercion the assignee shall try the effect of repeated solicitations for the money, the legal rule of strict diligence cannot with justice be applied, either in determining the length of time after the assignment, within which the process of law shall be resorted to, or the energy and rapidity with which the personal demands shall be made on the debtor. Hume v. Brown, 3 Dana 450.

Although the note, in respect to which there was such agreement, was suable before a justice, and was assigned the 30th of December 1833, yet there having been application to the debtor on the day of the assignment, or within two days after, and the suit having been delayed for the purpose of making farther solicitation for the money and with a reasonable expectation that by further urgent solicitation it might be obtained, and such further solicitation having in fact been made, the delay to issue legal process until the 23d of January 1834, was not unreasonable unless the assignee, in the mean time, had good reason to suppose that by such delay, the debt might be lost. S. C.

There is no necessity for a suit, if the case be one in which no injury is done to the assignor by the failure to sue; as where the assignors have no right to require of the maker to pay the note on which the assignors were sued. Such was the case where that note was given in exchange for note of the same date and amount which they had executed to the maker of the other; and had not paid. Caton &c. v. Lenox

&c. 5 Rand. 331.

Nor is it necessary to sue a maker who, when the assignee could have sued him, had been discharged under a bankrupt or insolvent law, or was in fact insolvent; so that a suit against him would be wholly unavailing. Roane, J. in Barksdale v. Fenwick, 4 Call 503; Taylor, Ch. in Saunders v. Marshall &c. 4 H. & M. 455; Brown v. Ross, 6 Munf. 391; Coiner v. Hansbarger, 4 Leigh 452; Clarke v. Young &c. 1 Cranch 180; Violet v. Patton, 5 Cranch 153; Smith &c. v. Triplett &c. 4 Leigh 600; Peay v. Morrison's ex'ors, 10 Grat. 157; Roberts v. Atwood & Co. 8 B. Monroe 210.

9. Generally assignee must sue obligor or maker in a reasonable time.

The general rule is, that the assignee is to sue the obligor or maker in a reasonable time. Lee v. Love &c. 1 Call 497; What is a reasonable time

Thompson v. Govan, 9 Grat. 695. has not yet been defined in Virginia, as it has been in Kentucky. There the assignee of a note suable in a circuit court, has to use reasonable diligence to obtain a judgment on the note, at the first term after it is payable, or (if it be assigned after it is payable,) at the first term after the assignment. It is not necessary that he should, at all hazards, commence his suit immediately, if the intervening period before the term of the court would admit of delay. But he is required to use such diligence as a man of ordinary prudence, who deemed it important to have a judgment at the first term, would use if he were alone interested in the collection of the note. Thomas v. Taylor &c. 2 J. J. Mar. 218; Hume v. Brown, 3 Dana 450; Perrin v. Broadwell, Id. 597; Bays v. Patton, 8 B. Monroe 229.

A note due January 1, 1843, was assigned the 7th. The obligor, who had been residing in Marion county, Kentucky, was then temporarily absent in a southern state. Suit brought against him in that county, on the 28th of March-shortly before his return to the state-was in time. Bard v. McElroy's adm'r, 6 B. Monroe 418.

In another case, there were at the date of the assignment 37 days to the commencement of the term, and but 27 for service of process in time for judgment at that term. Process was issued on the 23d of these days, leaving only 4, or at most 5, within which to serve it, and it was not served within that time. Hence there was not judgment at the first term after the assignment. Though there was judgment at the following term, and execution was returned nulla bona, the assignee failed to recover against the assignor. Bays v. Patton, 8 B. Monroe 228.

Yet the assignee, it has been repeatedly said, is required to use, not all possible diligence, nor indeed extraordinary diligence, but only that measure of diligence which a prudent man would be expected to use in the case, if he were solely interested. It cannot be said that the delay of a few days, leaving still ample time, upon all reasonable calculation, for due service of process, would evince either a disposition not to obtain a judgment at the first term, or a want of ordinary prudence in taking the steps requisite for that object. MeMurray v. Wood, 9 Dana 46. Reasonable diligence was used by an assignee, who commenced his suit more than 40 days before the commencement of the first term after the maturity of the note. Latham v. Western, 8 B. Monroe 299.

When the assignment is accompanied by an agreement, or directions on the part of the assignor, that before resorting to coercion the assignee shall try the effect of repeated solicitations for the money, the legal rule of strict diligence cannot with justice be applied, either in determining the length of time after the assignment, within which the process of law shall be resorted to, or the energy and rapidity with which the personal demands shall be made on the debtor. Hume v. Brown, 3 Dana 450.

Although the note, in respect to which there was such agreement, was suable before a justice, and was assigned the 30th of December 1833, yet there having been application to the debtor on the day of the assignment, or within two days after, and the suit having been delayed for the purpose of making farther solicitation for the money and with a reasonable expectation that by further urgent solicitation it might be obtained, and such further solicitation having in fact been made, the delay to issue legal process until the 23d of January 1834, was not unreasonable unless the assignee, in the mean time, had good reason to suppose that by such delay, the debt might be lost. S. C.

10. Suit against obligor or maker must be in the proper place.

The suit is to be brought in the proper county as well as in proper time. It may be advisable for the assignee before commencing it, to make enquiry to ascertain the maker's place of residence. Burr v. Morrison, 7 B. Monroe 132.

The suit may properly be brought in the county in which the obligor had been residing before his absence from the state, if such absence was expected to be, and was in fact, temporary. Bard v. McElroy's adm'r, 6 B. Monroe 417.

If the assignment be of a note or bond of a person known at the time to be a resident of another state it must be understood to be within the contemplation of the parties that the assignee shall pursue the maker, by suit in the state where he resides. Dulany v. Hodgkin, 5 Cranch 333; Deane v. Scholfield, 5 Leigh 386; Simpson v. Daniel, 1 B. Monroe 250. A suit in the state wherein one of the makers resides and wherein the other was served with process in a transient visit is not enough; for the estate of the latter must be presumed to be where he resides. S. C.

11. Suit brought against obligor or maker must be diligently prosecuted.

In whatever place the suit may be against the maker, such suit must not only be brought in a reasonable time but must also be prosecuted in a judicious manner. Barksdale v. Fenwick, 4 Call 492; Bronaugh v. Scott &c. 5 Call 78; Deane v. Scholfield, 6 Leigh 386.

The assignee who, at the term at which he is entitled to judgment, demands it, is not blameable because the court improperly continues the case and postpones the judgment. Clark v. Prentice &c. 3 B. Monroe 587. But if he at that term, instead of taking judgment, make a purely voluntary and gratuitous agreement to continue the cause, this, in effect, is the same thing as a failure to bring the suit to that term, and equally fatal on the question of diligence. Mair v. Smith, 7 Id. 192.

He must use due diligence not only in commencing the suit but in following it up; for commencing the suit in time would avail but little if it afterwards, by his negligence, should hang on the docket until the principal became insolvent. Sayre v. Bayless, 1 B. Monroe 305.

It was clear that due diligence was not used in Deane v. Scholfield, 6 Leigh 386. There the note was executed in Fairfax county on the 10th of June 1818, was assigned on the 18th of that month, and became due on the 12th of August in that year. In the summer of the same year the maker removed to Maryland, and established himself there within less than 20 miles of his former place of residence; having in possession when he removed, and continuing for some time to hold, two slaves as well as some household furniture. More than 18 months elapsed before the assignee brought suit in Maryland; he then failed for another year to file his declaration; and in the meantime the maker became insolvent.

When the suit against the obligor is brought in due time, and duly prosecuted, as it was in Whaley v. Vanhook, 4 B. Monroe 271, although in that suit bail, which might have been, was not required, the assignee may nevertheless recover against the assignor. Harrison's adm'r v. Raine's adm'x, Munf. 451; Caton &c. v. Lenox &c. 5 Rand. 31.

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12. After judgment there must be due diligence in issuing execution to the proper county.

When judgment has been obtained against the obligor or maker, it has been a question, in Kentucky, whether there is, or should be, any established rule prescribing the number of days which may or may not intervene between the expiration of 10 days after judgment, when the execution might by law be issued, and the time when it actually issued, and was placed in the officer's hands. 3 B. Monroe 588. There seems to be no other rule on the subject than the general requisition of due diligence in prosecuting the remedy against the obligor or maker. Id.; 1 B. Monroe 305; Passmore v. Prather, 9 Dana 57.

In one case an interval of three months was held too long. Trimble &c. v. Webb &c. 1 Monroe 100. In another a delay of about one month was so explained as to shew no want of diligence. Clark v. Prentice &c. 3 B. Monroe 590. In two other cases the action against the assignor was defeated by a delay to issue execution for 7 days after the expiration of the 10; the delay in these cases being unaccounted for. Bard v. McElroy's adm'r, 6 Id. 419; Mair v. Smith, 7 Id. 192.

If the debtor reside in the state, the execution should be sent to the county in which he resides; that being the county in which his property is presumed to be. Buck &c. v. Morrison, 8 B. Monroe 133.

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