
    Pillard v. Adm’rs. of Darst.
    Suit by the assignee of a promissory note against the adm’r. of the assignor, on the ground of the insolvency of the maker: proof, that the visible property, of the maker was not equal in value to the. amount of his indebtedness,.held, to be insufficient, to establish the. insolvency.
    Error to St. Louis Circuit Court.
    
      Bogy and Hunion for Plaintiffs in Error...
    
    The only question for the adjudication of this court is, as to the. liability of the defendants, under the assignment of the note by their intestate to the plaintiff: And, the decision of that question, must depend upon the construction to be-given to the statute upon the subject of “assignments,” passed Feb’y Ilth 1825. See Revised Laws 1825, page, 143.— See Breese’s Reports, page--16, and Reports of cases in lili-•nois page 46.
    
      Primm for Defendants.
    
    1st. Did the assignee of that note "use due diligence in ’■'■the institution and prosecution of a suit at law against the ''maker for'the recovery of the money due, or damages in lieu lieu thereof ?” The defendants say no.
    2nd. Was the maker insolvent, so that a writ would he unavailing? The defendants contend that the term insolvent, used- by the statute, means that kind of insolvency which is evidenced by'-taking the benefit of the-insolvent act, and not the mere fact, that a person’s visible property is not equal in value to the amount of his known debts. Rev. L. 1825, p. 143.
    The defondants call the attention of the co'tfr't to the 'additional point, that there is no evidence of demand and notice of non-payment to the assignor. Such demand and notice, they contend, is necessary to charge the assignor. Irwin vs Maury 1 Mo. Rep. p. 194. -
   Opinion of the Court delivered by

Napton Judge.

Pillard presented for allowance to the 'county court of St. Louis county, a demand against the estate of Darst, founded on a note made by one Philip-Borgna to Darst, and assigned by Darst to him, (Pillard.) The note was as follows: “St. Louis" June 2,1834. One year from date, I promise to pay John Darst, or order, one hundred and eighty dollars, .for value received; with interest at the rate of ten per cent per an'num from date. Ph. Borgna. $180,00. ” On the back of this note was the following endorsement: “For val•ue received I assign the within note to Pierre Pillard — John Darst.” “$10 Paid on account by me. Ph. Borgna.” The signature of Darst was proved. This claim was not allowed by the county -court, and an appeal was taken to the circuit court, where judgment was again given against Pillard.

The bill of exceptions details the testimony offered, from •which, it -appears that the maker of the note was a Catholic priest, stationed ’at this place (St. Louis;) that he was pos.sessed of no property, with the exception of a horse, saddle an<^ and a lew ecclesiastical books, the value of which was not stated. One witness stated, that Bógna, the maker' of the note, had nothing in this country, except his gown and ^Beviary; that he was to all appearances an insolvent man; that he left this country in a clandestine manner, sometime in the month of December in the year 1836, leaving debts behind without making any provision do pay them. That he has never returned,, and left no property here. It'further appeared, that' the administrator of- John Darst, some time in the' early part of the year 1836;.g.ave notice to the endor-see to bring suit against the maker, which was not done. It also appeared, that the endorsee had often called on the administrator of the estate for the payment, which'was always refused..

.Suit by the promissory a jiote against the Assignor, on the ground oi the uisolv-oneyofthe üvauiie 'vm-ble property wasufot^qual m value to amount of his tuown in- , held!<to°be’ insufficient to insolvency!118

This claim, as it appears from the record, was submitted to the circuit court, sitting as a jury, and the court found for the defendants.

The main question, argued in this case, is the same which this court has determined in the case of Pococke v. Blount, decided at this term.

The only other question arising is, whether the verdict of the court is well supported by the facts in evidence. On this subject the rule has been often established by this court, that ev^ence must greatly preponderate against the verdict to induce this court to direct a new trial. There is, in my °P™on>110 evidencs-of insolvency in this record. It would be quite easy to convict manv verv responsible persons of • 7 .. , r 1 insolvency, if the want of any property, save a horse and some ^00^’ created an insolvency. No refusal by Borgna to pay any debt whatever was proved, and-'the want of due &%ence by the holder was clearly established. The maker of this note continued in this country nearly eighteen months . , . , ,/ T J , . alter it was due, and notwithstanding the administrators of ass^Saor notified the holder to bring suit, before Borgna-bad left the country, it was not done. The verdict of the' cour<: is weH supported by the facts. Judgment affirmed.  