Opinion
12-04-1819
Johnston v. Hackley
Richard S. Hackley assignee, brought assumpsit in the County Court of Spottsylvania against Richard Johnston, assignor of a Bond executed by a certain James Haydon; stating, in his declaration, that he instituted a suit on the bond, and used due diligence in prosecuting the same; but was unable to recover the money, or any part thereof, of the said Haydon; as by the record and proceedings in the said suit, appeared, & c.
At the trial, on the plea of non assumpsit, the plaintiff offered in evidence a record shewing that the bond, dated January 1st 1798, payable on demand, was assigned to him, by Johnston, the 1st of March 1800: that the declaration, in his suit as assignee of Johnston against Haydon, was filed in November 1802; that he obtained judgment, April 7th 1803; that a fieri facias issued, April 12th 1803, directed to the Sheriff of Spottsylvania, whose return was " no effect; " also a capias ad satisfaciendum, June 28th 1803, returned, " not found; " and another capias ad satisfaciendum, upon which the return was, " Executed on the body of James Haydon, who stands committed to the prison rules and bounds of this County, with William Grady security, as per bond dated the 23d January 1804."
To this evidence the defendant demurred, and a conditional verdict was found. Upon the demurrer, the County Court gave judgment for the defendant; which was reversed by the Superior Court, on the ground that the plaintiff in " this cause did use due diligence in suing the obligor James Haydon, and in adopting a judicious course of execution against him; and that a defect of diligence could not be inferred from the lapse of time between the assignment of the obligation to the plaintiff and the commencement of the suit against the said obligor; there being no evidence given to prove either that the plaintiff knew that the obligor was in declining circumstances, or that the defendant required or called on the plaintiff to commence a suit at an earlier period."
The Superior Court therefore entered judgment for the plaintiff; from which the defendant appealed.
Judgment reversed.
OPINION
Judge Roane.
The cause was submitted by the counsel for the appellant; the appellee not appearing; whereupon, JUDGE ROANE pronounced the Court's opinion, as follows.
Although, after the return of " no effects" on the fieri facias issued against the obligor in the case in question, it was not incumbent on the appellee to sue out a Capias ad satisfaciendum, in order to entitle himself to this action; yet, having taken out such Execution, which " tends to satisfy the debt," and as, (for aught appearing in the record,) Haydon the obligor is still in custody, under the ca. sa., or may have paid the debt; we are of opinion, that the appellee was premature in bringing this action. On this ground (without attending to other objections arising in the case,) the judgment is to be reversed, and entered for the appellant.