
    Boyer vs. Turner's Adm'r.
    Appeal from Kent County Court. This wag an action of debt by the assignee against the assignor of a hill obligatory. The defendant, (the appellant,) pleaded nil debe.t. I ,
    1. At the trial the plaintiff, (the apppllee,) offered in evidence a single hi!! executed by Joseph Calder, an the 32th of September 1803, whereby he promised to pay to Samuel Boyer, (the defendant,) hi? executors, &c. §100. He then offered in evidence the oath and assignment endorsed on the gaid bill, in the following words, (having first proved the due execution of the assignment:) Maryland, Kent county. On the 26th of December 1803, came Samuel Boyer before me the subscriber, one oj the justices of the peace of the county and slate aforesaid? and made oath on the Holy Evangels of Almighty God, that he has not, nor no one for him, received any part, parcel, security or satisfaction, for the within obligation, , ' ' ’ ■
    
      James Welch.n
    
    “I Samuel Boyer do hereby assign, transfer ard set oyer, unto Hb«n,ezer Turner, of the state of Delaware, all $ay right, title, claim, demand and interest of, in and to. the within obligation on Joseph Calder, for the sum of «£3S 3 lu, principal interest, i$ b.eiug for yalue of bina received. As witness ray hand and seal this 2Glh day of December 1803. Samuel Boyer, (L. S.) Witness, James Welch”
    
    
      I a/Hdayit si band , made by the obligee was sufficient to tvariant its assignment under the act of 176% eh. 23, $ 10, f '
    , To enable (lie ' assignee of.a bond to maintain an uc- ' lion agains^ the assignor, fig -must prm\>. that the nbsip;op was unable to ' pay the debt, or that he could not ’ be ibuud in the place or county of ■ Ins usual abode, or that some other thing or casualty happened \thero- : by Ue was'not able to recover his d. bl frotp the obligor, though he had used due diligence iop that purpose» What shall amonnt tqd.ie diligence, ib a question of'law for the court, up on the facts, of tbs cuaüo
    
      To this oath and assignment the defendant objected as insufficient and inadmissible evidence, on the part of the plaintiff, on the ground that they were not such an oath and assignment as the law required. But the court, £ Earle, Ch. J. IhirncU, and Worrell A. J.] were of opinion, that it was proper testimony, and permitted them to go to the jury. The defendant excepted.
    2. The defendant then prayed the court to direct the jury, that they must be satisfied that due diligence was used by Ebenezer Turner, or James Welch his administrator, to recover the debt from the obligor in the within bill, or otherwise they must find a verdict for the defendant. But the court refused to give that direction to the jury, and gave them the following: “That the jury, to find for the plaintiff, must be satisfied that Colder vas unable to pay, or if able to pay at any time after the assignment, that the debt was not lost by the negligence or default of the assignee or his administrator. That the non-inr.titution of a suit against Colder op the bill, is a circumstance of a negligence or default that ought to weigh with the jury; hut that the bringing of an action on the bill was not indispensably necessary to a recovery against the assignor; and that if any positive facts, evincing negligence or default in the assignee or his representative, exist in the cause, they ought to be established by testimony on the part of the defendant.' The defendant excepted; and the verdict and judgment being against him, he apppaled to this court.
    The cause was argued before Chase, Ch. J. and Polk, Buchanan, Nicholson, and Johnson, J. by
    
      Chambers, for the Appellant;
    and by
    
      BarrpU, for the Appellee.
   Nicholson, J.

delivered the opinion of the court. The court are of .opinion, that the affidavit on (he bill obligatory in this case is sufficient to warrant the assignment under the act of 1763, ch. 23, s. 10.

To enable the assignee to maintain an action against the assignor, it is incumbent upon the assignee to prove that the obligor was unable to pay the debt, or that he could Pot be found in the place or county of his usual abode, or that some oilier thing or casualty did happen, whereby the assignee was not able to receive or recover Isis debt from the obligor, he, the assignee, having used due diligence therefor. What shall ¡amount to due diligence is a question of law for the decision of the court, arising upon the facts of the case.

The court do therefore reverse the judgment, and order a procedendo to issue.

ít?DGMKXT REVERSED, &C«  