
    CONSTITUTIONAL COURT, CHARLESTON,
    MAY, 1806.
    Dawson v. A. and W. Tunno.
    in covenant, it appeared that the defendants had warranted the payment of a bond, conditioned for the payment of a sum of money, which they had assigned to the plaintiff, in case the plaintiff should not.be able to obtain payment from the obligor of the said bond; and that the plaintiff had brought an action and recovered judgment against the obligor, and had sued out execution against the property of the obligor, which was returned, “ levied on the defendant’s goods, subject to older executions,” but had proceeded no further against the obligor. It was held that the action was not maintainable, as the plaintiff was bound by the contract to endeavor, by all legal means in his power, to obtain payment of the obligor before he should be entitled to have recourse to the defendant on his warranty, and he had neglected to push the execution to the utmost.
    Motion to set aside a verdict' given for the plaintiff in covenant on a bond, with a condition covenanting to guaranty the payment of sundry bonds assigned and passed to the plaintiff in payment, particularly a bond given by R. P. Sanders for one hundred pounds, in which covenant it is conditioned that the plaintiff should use due diligence to recover and receive the monies due on the said bonds. The covenant was made in 1791, It appeared that judgment had been obtained on the bond against Sanders in 1789, in pursuance of which, execution oifi.fa. was issued, and lodged in the sheriff’s office, and was levied on goods subject to prior executions, but no effect was produced by such levy. A sci. fa, was afterwards *■ * * * brought on the judgment, to revive it, in 'September, 1796, and judgment thereon was obtained in November, 1790. In February, 1797, another fi. fa. on the revived judgment was issued, and was returned by the sheriff, “ nulla bona.” In February, 1799, plaintiff gave the defendants notice, that he would resort to them.
    Bay, J., before whom the cause was tried in Charleston, left the question to the jury, whether due diligence had been exercised by the plaintiff, or not.
    Verdict for plaintiff.
    PeiNgle, and Desaüssüee, in support of the motion.
    The ji, fa. lay dormant for five years, and no legal steps were taken to obtain payment. The levy was ideal, “on residue, if any,” the property being seized to satisfy prior executions. No industry used to point out property ; or to see that the monies levied by virtue of prior executions, were properly applied. The adminis-tratrix of Sanders let judgment go by default; this fixed her with the debt, and she was liable upon a devastavit; plaintiff should have proceeded against her. Vern. Equity would not relieve her. Due diligence in this case, means all the reasonable exercise of legal means, which the nature of the case admits of. Fi. fa. returned nulla Iona, is evidence of insolvency, but not conclusive. Defendant may not have tangible and visible property, but non con. stat, that he has not cash, and choses in action, or property, in ' another State, liable to be attached there, or which may be forthcoming under the operation of a oa. sa.
    
    The question of due diligence in this case was a question of law. The evidence on the question was for the jury; but the facts being established, the question of due diligence was for the court: i. e. whether the evidence so established, amounted to due diligence, or not. The court should have instructed the jury, that the evidence on the part of the plaintiff of due diligence, according to the nature and scope of the contract was altogether insufficient to warrant a verdict in his favor.
    J. Waed, on the other side.
    The return of nulla bona is pri. ma facie evidence of insolvency. It remains good till defeated by opposite proof. No such opposite proof was offered in this case. Sanders could not be taken by ca. sa. The situation of the country did not admit of such a violent mode of redress. Besides, plaintiff had a right to presume the executioft, which was first issu-ec*’ st‘^ continued in force. The judges, in 1793, established the novel distinction between active energy and binding efficacy, as applied to writs of ji. fa, and the new principle, that an execution binds defendant’s estate, after the return day, although it has never been levied. Plaintiff might rely on this, and could expect no greater advantage, if he had pursued all the usual means of exacting payment by the sheriff. Suppose he had sued a ca. sa., he must have relinquished his lien by the fi. fa. This it was not prudent to risk. The binding efficacy of the fi.ja. would have been dissolved by this misconduct, and it would not have been the use of proper or due diligence to abandon a lien, in the vain expectation of profiting by a ca. sa., which, at that day, was scarcely ever adventured to be used. He acted as any prudent man would have done, in the management of an execution of his own, under similar circumstances, and ought not to suffer for any supposed omission of legal diligence to recover the debt.
    
      Note. Due diligence to receive, means demand in reasonable time, and notice.
   10th May, 1806.

Trezevant, J.,

delivered the unanimous opinion of the court, that in this case the plaintiff had not used due diligence to receive the money due on Sanders’ bond, and, therefore, from the evidence produced at the trial, was not entitled to the verdict, which the jury had rendered in his favor. It appears, manifestly, that the plaintiff did not avail himself of all the legal means in his power, and make a seasonable and proper use of them, in order to obtain payment of the bond, In particular, he omitted to sue out a ca. sa. Although this may not be necessary in every case, yet it must be regarded as necessary in every case, where, by possibility, it might prove effectual, or answer the purpose ; and it might have done so here, for any thing that appears to the contrary.

Motion granted.

Note. If A. sue B. in a proper court, if his suit be without ground of truth, and that certainly known to himself, B.may have ease against him for the undue vexation and damage. But there must be a damage, either already fallen on the party, or else inevitable. Hob. 006. But in general, it is not actionable to bring a civil action, though there be no good ground for it, because it is a claim of right, and the plaintiff finds pledge to prosecute, and is amercible pro falso clamors, and is liable to costs. Bull. N. P. 11.  