
    Hall v. The Junction Railroad Company.
    Suit upon a promissory note. Answer, by way of set-off, that the defendant had delivered to the plaintiff a note, on one A., to be collected and accounted for, and that the plaintiff had negligently failed to sue, until A. became insolvent. The receipt given by plaintiff for the note was conditioned that he should account for the same, or deliver it to an attorney for collection.
    
      Held, that the plaintiff was bound to use reasonable diligence in the management of said note, according to the terms of his receipt.
    
      Held, also, as the question of diligence must be determined by the facts in each case, and no precise time can be fixed as being sufficient to support an averment of non-performance, unless the non-performance could be averred at a day so remote as to authorize the Court to infer negligence, that the negative averment in the answer, that due diligence was not used, was sufficient.
    
      Held, also, that the note having been delivered to the plaintiff only twelve days before the next approaching term of the Court having jurisdiction, and ■the maker living some miles distant, the plaintiff would not be liable, as for negligence, for not suing in such Court.
    
      Friday, December 14.
    APPEAL from the Fayette Common Pleas.
   Hanna, J.

Suit on a note and a writing, named in the pleadings a warrant. Answer, setting up that the defendant had delivered to the plaintiff a note, on one Róby, who wag then good, and the note collectable, to be collected .and accounted for, ,&c.; that ¡plaintiff had negligently failed to s.ue, until Roby had become insolvent, and the same could not be collected because of said negligence, &c. A demurrer to the answer was overruled; as well -as a motion to strike out portions thereof. Points are .presented upon .these rulings. The pleading avers that, at the time the note was delivered, a receipt -was executed, which is made a par-t of the .answer, and provides, after describing the note, that, as to the game, said Hall was to “account for, or leaye it with an attorney in O.enterville for collection, and in that event pay the expenses of collection and have the benefit of the judgment.”

The note w-as not left with an attorney, so as to have suit brought at the first term .of .Court after it was so delivered; and for causes not disclosed, judgment -was -no.t obtained, for near a year and a half thereafter.

Questions as to the degree of diligence requisite, upon the part .of Hall, in -reference to the collection of said note, are raised; and .also, as to ¡the admission .of certain evidence upon .the trial.

We think that Hall -was hound to use reasonable .diligence in the management of the note, or claim, that was delivered to him. He was to account for it, .or leave it with an attorney, &c. If he midertook to dispense with the alternative of leaving it with an attorney., it was then incumbent on him to show that he had exercised that degree of diligence which would excuse him froni accounting for the amount of the note, if it could not he collected. If he decided .to choose the alternative of leaving the -same with an attorney, he would, as to that, have to show that -he had, in like manner, exercised diligence in that act. Each case must,.to some extent, he controlled by its own facts, as :to whether there was due diligence exercised; therefore, no precise time'can he fixed, as being sufficient -to -aver the non-performance of ¡the one or the other of the acts, in the pleadings; unless the averment could have been of non-performance -at. a day so remote from the day of the delivery of the note, as to .enable the Court to say, that the want of diligence cou-ld have b.een inferred from the space of time that had elapsed. The averment, therefore, being of a negative character, namely: that the plaintiff did not use due diligence, and had through his negligence caused, &c., is sufficient: and the demurrer was properly overruled. ' x x •/

There was a reply filed denying, &c. Trial, finding and judgment for the defendant, for seventy-three dollars, which was the difference between the claims sued on, and that set up in defense.

Upon the motion for a new trial, the sufficiency of the evidence, to sustain the verdict, is questioned. The note was delivered to Hall on March 26, 1856, at Oonnersville, Fay. ette county. The first term of the Wayne Common Pleas, which was the first term of a Court thereafter, in said county, commenced on April 7. Roby resided near Abington, Wayne county: Hall at Brownsville in Union county. Hall caused the note to be presented to Roby on March 27, and demanded payment, which was refused, and he was told it would not be paid. The note was delivered to attorneys on June 12, and suit brought in time for the July term of said Common Pleas. By the evidence the want of diligence is rested upon the fail • ure to bring suit at the first term. The evidence does not show whether Roby was, between March 26, and June 12, solvent or not; except that when Hall got the note, he stated, he thought he might be good, but he did not know how long he would be so. Hor were his circumstances shown afterward. It is true the record of the suit upon the note was given in evidence, but for one purpose only, namely, to show the time when suit was instituted; but the whole record went in evidence, and showed a return of no property found, if it had been before the jury for that purpose.

We are of opinion that the evidence does not sustain the judgment.

The evidence shows that but twelve days intervened between the day when the note was obtained by Hall, and the term of the first Court having jurisdiction. Service had to be ten days, or no steps could be taken to force a judgment. We do not think that, under the arrangement, he was compelled to sue, without first making an effort to collect it without. Two days were not sufficient to traverse three counties, and make that effort; at least we hold there was not a want of diligence if he failed to perform that act, and sue, also, within the two days, under the merely ordinary circumstances here disclosed.

B. F. Clayj)ool, for appellant.

J. C. McIntosh, for appellee.

Per Curiam.

The judgment is reversed, with costs.  