
    Sayre vs Bayless.
    Oasis. Case 95.
    Error to the Fayette Circuit.
    
      May 20.
    
      Assignor and assignee. Diligence.
    
    The case stated.
    Assignee is not only bound to use diligence in commencingsuit but in the prosecutionoi itthereafter.
    Altho suit cannot be commenced in time for judgment to be had at first term, yet may other steps be taken preparatory to trial.
   Judge Ewing

delivered the Opinion of the Court.

This is an action of assumpsit, brought by Bayless against Sayre, as bis assignor of a note on the Whites of Estill, as payors, in which he recovered judgment below, and from which Sayre has appealed to this Court.

To entitle the assignee to recover against his assignor, it is not only necessary for him to show that he has used duo diligence in the commencement of the suit, but also due diligence in its prosecution to a judgment, as well as in taking out and placing execution in the hands of tlie proper officer. And giving to the proof of the plaintiff below, all the force and effect to which it is entitled, in the absence of other explanatory proof, we are constrained to come to the conclusion, that due diligence has not been made out.

If it be conceded that, as the note was made negotiable and payable at the Northern Bank, that the assignee had a right to wait until the three days of grace had expired, which is the time allowed for payment after the note fell due, according to the known custom of the Bank, and waiting, might not have been able, by the exercise of ordinary diligence, to have sued in time to have recovered judgment at the first Court in Estill, yet he might have sued in time to have had process served, so that the necessary orders for taking depositions and other steps, preparatory to a trial at the subsequent term, might have been taken.

But though the Estill Circuit Court commenced on the 17th of July, 1837, suit was not commenced till the 18th September following, and then, at the succeeding October term, a general continuance was granted to tlie July term following, without apparent reason or cause shown by the record, or proof aliunde., and aL the July term, for the first time, leave is obtained by the plaintiff, Bayless, to take a deposition in Missouri, and on his motion and affidavit, that owing to the influence of the Whites, he could not get a fair trial in Estill, the cause was ordered to be removed to Clarke; yet the papers were not lodged with the clerk of the latter Court until the 14th of September following, only a few days before the commencement of the September term of said Court, and at said term another general continuance is made, without cause shown, to the March term, 1839; and at this term, for the first time, a plea is filed impeaching the consideration of the note, and another general continuance granted, without cause shown, to the June term, and at this term a replication was filed to the plea, and another plea put in by the Whites, and issue taken on it, and a jury and verdict for the plaintiff, and judgment thereon on the 3rd day ■of July, 1&39, lacking one day only of two years from the time the note foil due. And though judgment was rendered on the 3rd, execution was not sued out till the 15th, nor placed in the officer’s hands until the 22d of July,

Now if it were conceded that the failure to sue to the first term, and the failure to place the execution in the hands of the officer until the 22d, allowing ten days for issuing the writ, might not of themselves be sufficient to show a want of due diligence, which is not necessary to determine, when these omissions and failures are taken in connection with the tardiness and negligence of the plaintiff in the prosecution of the suit, as manifested by the record, and unaccounted for by proof, we cannot doubt that there has been an entire failure on the part of the plaintiff to show that due diligence in the proceedings against the payors, which entitled him to maintain his action against Sayre, his assignor.

The assignee should not only use due diligence in the commencement of the suit, but also in following up and prosecuting the same to a final termination, and then in sueing out execution thereon.

The commencement of the suit in time, would avail but little if it afterwards were permitted to hang on the docket by the negligence of the plaintiff, until the payors became insolvent.

■Sayre for plaintiff: Robinson (£• Johnson for defendant.

The Circuit Court, therefore, erred in instructing the jury that due diligence had been used; wherefore, the judgment is reversed and cause remanded, that a new tfial may be granted without the payment of costs, and the plaintiff in error is entitled to his costs in this Court.  