Johnson v. Lewis
| Decision Date | 24 April 1833 |
| Citation | 31 Ky. 182 |
| Parties | Johnson v. Lewis. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR JEFFERSON COUNTY.
Mr Richardson for Plaintiff.
Messrs Morehead and Brown for Defendant.
Johnson sued Lewis, as the endorser of a negotiable note, for five hundred dollars, drawn by R. H. Grayson, endorsed by Lewis to Johnson, and by the latter to the Bank of the United States.
Suit by last endorser, who had paid the debt, against his endorser.
Upon the general issue, the jury found a special verdict, upon which the court pronounced judgment in bar of the action.
Special verdict, and judgment for defendant.
Among other facts, the jury found, that the bank had obtained a judgment on the note; issued a fieri facias, which was returned nulla bona, and then issued a ca sa. in virtue of which Grayson was committed to the jail of Jefferson county, and there kept in confinement, until some time in 1822, when, without notice to the bank, or its privity or consent, and without giving a schedule of his estate, or taking the oath of an insolvent debtor, he was liberated by the jailer, in consequence of an order given for that purpose by a justice of the peace; and that, thereupon the bank sued Johnson, as its immediate endorser, recovered a judgment, and made the whole amount.
Facts found by the jury.
As the facts thus found are abundantly proved by record and other testimony, the only question which we shall consider is whether the bank pursued its legal and ordinary remedies in such a manner, as to entitle it to recourse upon its endorser (Johnson; ) for if it did not, with reasonable diligence, prosecute the ordinary remedies for coercing the debt before it resorted to Johnson, Lewis is absolved from legal liability. He undertook to be responsible only on the condition that the ultimate endorsee should use proper means, to make the amount of the note, and should, nevertheless, fail.
If the holder of an endorsed note fail to use all and each of the ordinary remedies, direct or collateral, to coerce payment from the maker, the endorsers will be exonerated.--And although the holder afterwards obtain payment from his immediate assignor, the latter, nevertheless, loses his right against his assignor, by the laches of the holder.
" Due diligence" is a question of law; and the judgment of the law upon the facts of this case, is, that such diligence was not observed by the bank.
Due diligence is a question of law.
The Kentucky statute, abolishing imprisonment for debt, is not the law of the federal courts.
Jailer is bound to receive persons committed by authority of the U. S. and keep them until discharged by due course of the laws of the United States.
If the jailor, without legal authority, discharge a debtor committed under execution, he becomes liable for the whole debt.
The statute (of 1821,) of this state, abolishing imprisonment for debt, did not apply to the federal courts, or federal process.
By the...
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