The Bank of the United States, Plaintiffs In Error v. Levi Tyler, Defendant In Error

• Decision Date: 01 January 1830
• Parties: THE BANK OF THE UNITED STATES, PLAINTIFFS IN ERROR v. LEVI TYLER, DEFENDANT IN ERROR
• Court: U.S. Supreme Court

29 U.S. 366

4 Pet. 366

7 L.Ed. 888

THE BANK OF THE UNITED STATES, PLAINTIFFS IN ERROR v. LEVI TYLER, DEFENDANT IN ERROR.

January Term, 1830

ERROR to the circuit court of Kentucky.

This was an action, by the bank of the United States, against Levi Tyler, upon two promissory notes; one for three thousand nine hundred dollars, dated the 2d of May 1821, and payable sixty days after date, drawn by Anderson Miller, in favour of John T. Gray. It was negotiable, and payable, without defalcation, at the office of discount and deposit of the bank of the United States at Louisville, Kentucky, for value received. John T. Gray assigned the note to Levi Tyler, and Levi Tyler assigned it to the bank.

The other note was of the same date, for three thousand eight hundred dollars, payable to Samuel Vance; assigned by said Vance, and by the defendant. In all other respects, it was like the note above stated.

On the 24th of September 1821, suit was brought by the bank against the drawer, Anderson Miller, in the circuit court of the United States, for the district of Kentucky, for the first mentioned note; and judgment was obtained at the November term 1821.

On this judgment a fieri facias issued, bearing date the 29th of December 1821, returnable on the first Monday of March, being the 4th day of the month following, which was in the hands of the marshal on the 19th of January 1822; and the plaintiffs introduced as a witness the clerk of the court, who stated; that it had been his uniform habit, before and since the obtention of the said judgment, to issue executions on all judgments obtained at the last preceding term, and place them in a window of his office, from whence it was the habit and custom of the marshal to take them. That it generally required from twelve to sixteen days after the rising of the court, to prepare and issue the executions of the preceding term. That at the November term of the court, at which the before mentioned judgment was obtained, the court adjourned on the 17th of December.

To this fieri facias the marshal returned a levy, and that he had not time to sell before the return day. The return was filed the 28th of March 1822. On the 3d of April 1822, a venditioni exponas issued, returnable the first Monday in June. It was returned on the 17th day of June, 'unsold for want of bidders,' and the sale was postponed; and alias venditioni exponas issued, tested the 17th of June, returnable on the first Monday in September, returned on the 13th. The sales, amounting to ten dollars and fifty cents, were credited to another execution.

The 26th of September 1822, another fieri facias issued, which was levied on slaves, and sale made. It was returned the 9th of December 1822. The proceeds of the sale were one thousand three hundred dollars.

The 19th of December 1822, another fieri facias issued, and returned, 'levied on property mentioned, and not sold for want of time.' This was returned on the first Monday in March 1823.

The 20th of March 1823, a venditioni exponas issued, and was returned 'unsold, for want of bidders.' The return was filed on the 30th of June, returnable the first Monday in June.

The 1st of July 1823, another venditioni exponas issued, and was returned 'unsold, for want of bidders.' The return was filed the 12th of September 1823.

The 19th of September 1823, another venditioni exponas issued, and the property was sold. The proceeds amounted to four dollars and fifty cents. It was returned the 19th of December 1823.

The 19th of December 1823, another fieri facias issued, to March 1824, and was returned, 'no property found to satisfy the execution, or any part thereof.' Returned the 16th of March 1824.

The 16th of March 1824, a capias ad satisfaciendum issued, under which the defendant was committed; and so returned on the 26th of April 1824. The commitment was to March 1824.

The proceedings in the suit against Anderson Miller on the other note were also given in evidence. They also terminated in his committal to prison.

On the 27th of March 1824, two justices of Kentucky discharged Anderson Miller from prison.

Upon this evidence, the court instructed the jury to find for the defendant; and the jury found accordingly. The plaintiffs excepted, and the judge signed a bill of exceptions.

The plaintiffs offered witnesses, to prove, that Anderson Miller was notoriously insolvent when the note fell due, and had so continued ever since. The court rejected the evidence, and the plaintiffs excepted. This exception is stated in the bill.

The plaintiffs contend, that the court erred in charging the jury to find for the defendant; because they say it was fully proved that due diligence was used against the drawer; and the remedies afforded by the law were exhausted, without obtaining the money, and therefore they were entitled to recover from the indorser.

They contend, also, that, under the circumstances of this case, the evidence offered of Miller's insolvency, ought to have been received.

The case was argued by Mr Sergeant, for the plaintiffs in error; and by Mr Wickliffe and Mr Bibb, for the defendant.

Mr Sergeant stated, that the first question was, whether due diligence had been used.

The second, whether the proceedings have been carried so far as to establish the right of holders to sue the indorser or assignor of the note.

1. The principles of the case were settled at the last term, in the case of The Bank of the United States vs. Weisiger, 2 Peters, 331. They decide this point, at all events; and it is thought the whole case.

It is to be remarked, that it appears on the face of these notes, that they were drawn for the purpose of discount they were indorsed for the same purpose; and they were discounted for Levi Tyler, for value received by him.

The diligence used in the commencement of the suit appears from the statement of the case. It was brought to the first term, and in time to obtain a judgment at that term. No case in Kentucky requires more than this. The holder is not obliged to run a race against time; nor to sue the first term, if judgment could not be obtained. The general phrase is, 'it must be in reasonable time.' Trimble vs. Webb, 1 Monroe, 100. Oldham vs. Bengan, 2 Litt. 132. Collyer vs. Whitaker, 2 Marsh. 197.

Bail was demanded, which would be necessary if non est inventus was returned, 1 Bibb, 542, but not otherwise. 2 Marsh. 197. Tyler was the bail.

2. Judgment was obtained the first term, and a fieri facias issued on the same day, and was on the same day in the hands of the sheriff. 2 Peters, 333, 348, 349.

The fieri facias in the second case is said not to have been in the marshal's hands until the 9th of January; but this is probably a mistake; and if it was not, it was in good time. 2 Peters, 348. It was also immaterial; because the other fieri facias covered the whole property, as the return shows; and there was nothing to levy upon.

Was it necessary to issue two writs of fieri facias? From that time forward there was unceasing diligence; the process being followed up as fast as it was returned. It is true that the marshal returned he had not time to sell; but this was not because the writ came too late; it was because he found nothing to levy upon until the 28th of September 1822; or perhaps it is the ordinary course. Tyler was conusant of all this, for he was one of the defendants in one of the three executions.

Suppose however the officer did wrong; are the plaintiffs responsible for that? It has never been so settled. Postlethwaite vs. Garrett, 3 Monroe, 346. Nothing was lost by it; for the property was secured, such as it was, and a venditioni issued immediately in each case. The proceedings went on until the drawer was committed to prison; and that was all that could be done, and no more was required. Young vs. Cosby, 3 Bibb, 227. Here the diligence was fairly exhausted and at an end. The bail was discharged by this commitment, and there was no recourse to him.

Have the proceedings been carried so far as to entitle the holder to sue the indorser or assignor?

It is contended that there is an immediate right of action against the indorser by the holder, after the confinement of the drawer, which cannot be divested but by his own act or consent. He is not bound to take a single step to keep the drawer in prison. Young vs. Cosby, 3 Bibb, 227. Authorities upon this principle, 1 Marsh. 535. 2 Bibb. 34.

All this has been done; and the burthen of proof that any thing has been omitted is thrown upon the defendant. The plaintiffs are not bound to protract the imprisonment one moment. Bank of the United States vs. Weisiger, 2 Peters, 331. In Virginia the requirements are far short of this. Violett vs. Patten, 5 Cranch, 142.

Ought the law of Kentucky, which professes to be the law of Virginia, to be carried further than judicial decisions in that state have carried it? The point to be established is the insolvency of the drawer; or his inability to pay, to a reasonable extent. Not that every possible chance of getting the money by any means is exhausted. That point was reached.

But it is insisted, that a new career was to be begun. It is founded upon this argument, that the justices had no authority to discharge; that it was therefore an escape, and the jailor, and his sureties are liable.

Supposing all this to be correct, is it necessary for the plaintiffs to proceed? It will be recollected that there was no request to this effect. There is no decided case which gives any countenance to the position. The case of a replevy bond has no analogy.

But this proceeding would be collateral to the suit. It would be a new departure on a different line of operations, the first suit being only the base.

Were the jailor and his sureties liable by the Kentucky law? This cannot be decided for want of evidence. Were there any sureties of the jailor, and to what amount? Were they responsible men, or were they insolvent? Was the pursuit worth the...