
    Bozell v. Hauser.
    Suit before a justice of the peace by A., tbe assignee, against B., the assignor on a promissory note for 100 dollars. Tbe complaint charged that the note was due and unpaid, and that the mater was insolvent. In the conclusion, judgment was demanded for 100 dollars. Judgment by tbe justice, and appeal to the Circuit Court. , Motion to dismiss, on the ground that the sum, with the interest which had accrued, exceeded the jurisdiction of a justice, overruled. It was proved that the payor had offered to transfer, in payment of the note, another note for 100 dollars then due, which was subject to an offset of 20 dollars; that the payor’s property was not, at any time between the date of the assignment and the commencement of the action, worth more than 300 dollars; that the consideration received by the defendant was 86 dollars. Judgment for 97 dollars.
    
      Held, on.appeal, 1. That the motion to dismiss was correctly overruled.
    2. That the mater of the note being shown to be utterly insolvent, the assignee was not bound to bring suit against him.
    3. That the assignee was not bound to accept the note offered by the maker, nor would he have been bound to accept it even if it had been sufficient in amount to cover his demand.
    
      Wednesday, December 2.
    APPEAL from the Bartholomew Circuit Court.
   Davison, J.

This was an action commenced on the 25th of January, 1856, before a justice of the peace, by Hauser, assignee, against Bozell, assignor, of a promissory note. The note bears date December 15, 1853; was executed by one Miller to Bozell, the defendant below, for the payment of 100 dollars at twelve months; and by the latter, on the 18th of February, 1854, assigned to Moses Pruit, who assigned it to Hauser, the plaintiff.

The complaint charges that the note is due and remains wholly unpaid; and that when it became due, Miller was, and still is, insolvent, so that an action against him would have been unavailing. The conclusion of the complaint is as follows: “ Wherefore the plaintiff demands judgment for 100 dollars.”

Before the justice, there was a recovery against the defendant for 22 dollars, from which the plaintiff appealed. In the Circuit Court, the defendant moved to dismiss the suit, on the ground that the sum stated in the note, with the addition of interest which had accrued at the commencement of the action, constituted an amount to which the jurisdiction of a justice did not extend; but his motion was overruled. The case was then submitted to the Court, who found for the plaintiff 97 dollars. Motion for a new trial denied, and judgment, &c.

The evidence shows that the plaintiff, before he instituted the present suit, placed the note in the hands of his agent, one Jones, for collection; and that Miller, the payor, had offered to transfer in payment thereof a promissory note for 100 dollars, then due; but Jones, being informed by Owens, the maker of that note, that it was subject to an offset of 20 dollars, declined taking it. Owens, having been produced as a witness, testified that when he told Jones of the offset, he also told him that he, Owens, was ready and willing to pay the residue of the note. It was proved that Miller’s property, including his note on Owens, did not, at any time between the date of the defendant’s assignment and the bringing of this action, exceed in value 300 dollars. And further, it was shown that the consideration received by the defendant for the assignment was 86 dollars and no more.

Had this suit been against the maker of the note, the ground assumed in support of the motion to dismiss would have been at least plausible. But here, the assignor is sued on his assignment, and though, in the absence of any proof on the subject, the amount of the note'is prima facie evidence that that was the'price paid for the assignment, still it was competent for the defendant to show, as the measure of damages, the actual value which he had received from his immediate assignee. 2 Blackf. 243. It could not, therefore, be known to the Court, until the close of the evidence, whether the plaintiff’s claim did or did not exceed a justice’s jurisdiction. The complaint, on its face, is unobjectionable; hence, the defendant’s motion was disposed of correctly.

The next question to settle is, was the alleged insolvency of the maker of the note sufficiently shown ? The statute says that the assignee of a promissory note “may, in his own name, recover against the person who made the same;” and that “any such assignee, having used due diligence in the premises, shall have his action against his immediate or any remote indorser.” 1 R. S. p. 378, ss. 2,4. As a general rale, it is the duty of the assignee to bring suit against the maker, and proceed in the ordinary course of law for the collection of the debt. A return of no property upon an execution, has been held sufficient evidence that the diligence required by the statute had been used. 1 Blackf. 181. But the rule to which we have referred does not apply where the maker has no property within the reach of the law, applicable to the payment of any debt; because, in that event, a suit upon the note, against the maker, could not produce any effective result. 2 Pet. Cond. R. 214.—5 Cranch, 142.—2 Blackf. 243.-8 id. 304. How, then, stands the case at bar? The evidence, in effect, proves that Miller, the maker of the note, was utterly insolvent. In value, his property did not, at any time after the defendant made the assignment, exceed 300 dollars. And that amount of property the law allowed him to retain as exempt from execution. Hence a suit against him would have been unavailing.

W. Herod and S. Stansifer, for the appellant.

C. E. Walker, for the appellee.

But it is said in argument, that the plaintiff, having declined taking the promissory note on Owens, in payment of the assigned note, was not in position to sustain an action against the assignor. If, as we understand the evidence, Miller offered the note in full payment, the plaintiff was evidently not bound to accept it; because it was subject to an offset, and for that reason insufficient, in point of amount, to satisfy his demand. But suppose the note on Owens had been sufficient to cover the assigned note, still the plaintiff’s refusal would not prejudice his recourse on the assignor; because his was a demand for money, and could not, therefore, be discharged by a mere offer to pay it in property. The judgment must be affirmed.

Per Curiam.

The judgmentis affirmed, with 5 per cent, damages and costs.  