
    Thomas B. Hoover vs. Charles C. Shackleford.
    It is a settled principle of law, that the plaintiff in an action, before he can recover, must make out his case, and it was incumbent on the plaintiff, before he could recover of the defendant, to prove that the note received by defendant for collection could have been collected with the use of ordinary diligence, and that a failure to collect resulted from gross negligence of the defendant. Held, that the plaintiff’s proof did not come up to this standard.
    In error from the circuit court of Madison county; Hon. R. C. Perry, judge.
    The facts of the case as shown by the record are, that C. C. Shackleford took for collection an assignment from the Citizens Bank of Madison county, of a note on S. M. Purkett et ah, payable to said bank, for the sum of $42,646, due twelve months after date from the 17th September, 1839, together with a like transfer of a mortgage to secure the same; which money, when collected, was to be paid over to Thomas B. Hoover and others. Hoover brought suit on the receipt given by Shackleford in the circuit court, where a judgment was rendered in favor of defendant below, when the plaintiff (Hoover) prayed a writ of error to this court.
    
      A. II. Handy, for plaintiff in error.
    
      L. M. Garrett, for the defendant in error.
    
      George L. Potter, on the same side.
   Mr. Justice Fisher

delivered the opinion of the court.

There is no question of law in this case requiring our decision. Some of the instructions asked by the plaintiff, as mere abstract questions of law, were correct; but under the testimony the court committed no error in refusing them.

The verdict is fully sustained by the evidence. Indeed, we are of opinion that the plaintiff failed in proving his case. Under the agreement of defendant, the plaintiff should have proved that the makers of the note, which defendant undertook to collect, were able to pay it, or some part thereof; and that a failure to collect resulted from the gross negligence of the defendant. The plaintiff’s proof does not come up to this standard, and therefore did not sustain his case.

Judgment affirmed.  