
    Sampson Horton, John Hunt and Stephen Shipman against David Frink.
    
      A. assigned to B. a pro-imssory note, no l neg'otia-ble, payable of September 18U2,ai a par-ticuiar place; duly presented, and payment was refused. On the Ser following sufficient personal property of the maker was attached in a suit on the note, returnable before the JVe-w- London City Court, on the 1st Monday of November, 1802 ; the process was seasonably returned to the dwelling-house of the clerk of the court, but by reason of his absence, was not entered in the docket. A second suit was immediately brought, in which, on the 11th of November, the personal property of the maker of the note, was attached, by writ returnable to the New-London City Court, on the 1st Monday of December, 1802 ; in which judgment and execution were obtained against the maker; and the execution, which ivas dated December 6tb, 1802, was, on the 28th of January, 1803, returned into the office of the clerk of the court, unsatisfied. After the commencement of the last-mentioned suit, and before the time of rendering judgment therein, the maker of the note committed an act of bankruptcy, and regular proceedings were had against him as a bankrupt. One term of the County Court in JVeiv-Lmidon county intervened between the commencement of the second suit and the time of rendering judgment therein. In assumpsit by the assignee against the assignor of the note, n was held, dial the plaintiff had not used due diligenefe* to collect the contents of the maker, and that, therefore, he was not entitled to a recovery.
    MOTION for a new trial.
    rpj,is was an action of assumpsit. The defendant pleaded 1 ’ 1 the general issue.
    0° tlle trial, it appeared, that on the 10th of August, 1802, the defendant, by a blank endorsement, assigned to the plaiti-certain promissory note, executed to him, by one Joshua Raymond, for the sum of 204 dollars, payable to the defend-ani or jjjs or(]er at the Union Bank in Nero-London, sixty . r days after its date, bearing elate the 21st of July, 1802 ; that w*leu the note became payable, it was presented at the bank lor payment, anti that payment was refused; that ori the tltii of October, 1802, the plaintiff's, in the name of the defendant, commenced an action on the note against the maker, i»y writ of attachment, returnable before the A~nr-London City Court, to be holden on the first Monday of Nomnhcr then next, by which the personal properly of Raymond, of the ⅝ alue of 400 dollars, was attached ; that the writ and process was, by the officer, returned in season, to the dwelling-house of the clerk rf the court, but by reason of his absence, was not entered in (he docket of the court ; that on the 11th day of November, 1802, the personal property of the maker, of the value of 400 dollars, was attached, in a second suit on the note, returnable to the Nem-Londmi City Court, held on the first Monday of December, 1802; when judgment was rendered for the plaintiff" in the action, and execution, dated the 6th of December, 1802, was issued thereon in legal forro ; which execution, on the 28th of January, 1803, was, by the proper officer, returned into tile office of the clerk of the court, wholly unsatisfied.
    It appeared, also, that subsequent to the institution of the last-mentioned action, and prior to the rendí rhig of judgment therein, Raymond committed an act of l>.,nkiuprcv wi'hin the meaning of the statute of the Uulid >S/, / s rtktlag to bankruptcy, and was duly declared a bankrupt pursuant to the provisions of the statute ; of all which the defendant had notice.
    It was admitted by the parties, that one of I be stated terms of the County Court, for the county of New-London, in 1802, commenced on the fourth Tuesday of November,
    The Superior Court, in their charge, instructed the jury, that the plaintiff's had not used due diligence in their attempts to collect the amount of the note of the maker, and iiidt, therefore, they must find their verdict for the defendant. The jury returned their verdict for the defendant accordingly. Tlie plaintiffs moved for a new trial, ou She ground of a misdirection; which motion was reserved for the considera-‘ion of the nine Judges.
    
      
      J. T. Piters, in support of the motion.
    It appears froiw the facts in this case, that the plaintiffs have been guilty of no negligence. The first suit was ..returnable on the 2d of A(member: The second suit was commenced on Hie 11th of November, and made returnable on the first Monthly of December following, when judgment was obtained, execution issued, and every legai course was pursued to enforce the payment of the debt. No injury was sustained by the defendant, by the delay.
    But an act of the law intervened, and rendered it impossible for the plaintiffs to coerce the payment of the money. The properly, which was attached, and held to satisfy the judgment, was swept from our hands, by an act of bankruptcy. This was an event, which no one could foresee or coni rol. The defendant, by his endorsement, warranted the solvency of the maker of the note, and ought to sustain the loss.
    Want of diligence cannot be imputed to the plaintiffs, on the ground of the failure of the fits! suit. This question iva» settled in the case of Frink v. Scovcl, 2 Day's Rep. 480. The plaintiffs have done every thing, which they could lawfully do, to enforce payment of this debt. They have given no for bearance to the bankrupt. The note was presented at the bank tor payment, when it became due. This alone was sufficient to lay a foundation for the action. The guaranty of the defendant extended to all contingencies, except the negligence of the plaintiffs. It is contended, therefore, that from the facts in the case, no negligence can be imputed to the plaintiffs.
    But besides, the question of due diligence, is a question exclusively within the province of the jury. They alone can decide this question ; and it ought to have been left to their decision. On this ground the charge was incorrect.
    T. S. Williams and Ourley, contra.
    The note on which this suit is brought was payable sixty days after the 21st of July, 1802 ; of course, it became payable on the 19th of September following. Grace is not allowable in this case. The note was not negotiable. In Massachusetts, it has been deckled, that even negotiable notes are not entitled to grace, unless they are expressly made payable with grace. Per Parsons, Ch. J. Jones v. fates, -I Mass. Rep. 251. The action might have bet-n brought to the October term of the City Court, or to the Soamhrr term of the County Court. To the one, or the other, the first suit should have been brought. The rule of law on this sunjoet, is, that (he action shall he brought immediately, SivijCs lío. 3 IT. The endorsee of a note is bound, at all events, to use due diligence ; and he cannot be permitted to shew, that the endorser has suffered no injury from his negligence. Sound policy, as well as the principles of justice, sanctions this doctrine. Dennis v. Mor-etee, 3 'lisp. 158.
    Further, it is claimed, that both the facts and the law in this case, ought to have been submitted to the consideration of the jury. The law on this point, is, that wherever the fads are so disclosed, that (here can be no doubt respecting them, the court will determine the law arising upon the facts, Tmdal v. Brown, 1 Term Rep, 167.
   Swift, J.

It appears, that Raymond, the maker of the note endorsed by the defendant, had sufficient property within the reach of legal process, to pay the note when it became due : Of course, the warranty of the ability of the maker, contained in the endorsement, was satisfied. This property was attached, and might have been held to respond the judgment, had it not been for some mistake in the return of the writ by the officer, or some accident in the clerk’s office, in not receiving it, and entering it in the docket. This ⅛ an event against which the endorser did not warrant: Of course, he is not responsible for it.

A new trial, therefore, ought not to be granted.

The other Judges, severally, concurred.

Mew trial not to be granted.  