Sebree v. Dorr
| Decision Date | 06 March 1824 |
| Parties | SEBREE and others, Plaintiffs in Error , v. DORR, Defendant in Error |
| Court | U.S. Supreme Court |
This is a writ of error to the Circuit Court of Kentucky. The action was brought by Dorr, as assignee, against Sebree and Johnson, as assignors, upon two notes, under seal, made to them by the Lexington Manufacturing Company. The declaration, instead of distinct counts upon each note, combines, in an inartificial manner, both notes in a single count. It states, that 'the Lexington Manufacturing Company, by their corporate seal, and signed by John T. Mason, jun., their president, did, on the 12th day of March, 1818, at, &c., execute and cause to be made, their note or writing obligatory, by which they did oblige themselves to pay to John T. Mason and James Johnson, twelve months after the date of the said writing, 10,065 dollars and 88 cents; and on the same day, and at the same place, did execute their other writing obligatory, in like manner, by which they bound and obliged themselves to pay to the said James Johnson and John T. Mason the further sum of 311 dollars and 31 cents;' omitting to state when the last note was payable. It then proceeds to allege the endorsements of the notes to the plaintiff, the presentment of the same to the Lexington Manufacturing Company for payment, the refusal, and protest for non-payment, and the commencement and prosecution of suits to final judgment and execution, against the Company, for the amount of the notes, in the General Court of Kentucky; the return upon the execution, that no property could be found, and due notice to the defendants. It farther avers, that the General Court had jurisdiction of the suits, and that, in consideration of the premises, the defendants became indebted and promised to pay the amount to the plaintiff. There were also counts for goods sold, and for money had and received. The cause came on for trial upon the general issue; and the only evidence produced by the plaintiff to support his action, was the records of the foregoing suits, which also contained copies of the original notes, and of the protests by the Notary. The defendants then prayed the Court to instruct the jury, 1. that the plaintiff had not made out a good cause of action; 2. that the records and proceedings aforesaid were not evidence against the defendants, because it did not appear that the General Court had cognizance of the subject matter; 3. That the records were not sufficient evidence of diligence on the part of the plaintiff, nor of the insolvency of the makers, nor of the assignment by the defendants. The Court overruled the motion, and instructed the jury, that the records entitled the plaintiff to a verdict against the defendants; and to these proceedings on the part of the Court, the defendants filed their bill of exceptions, and have thus brought the same points for consideration before this Court.
By the local law of Kentucky, instruments of this nature are assignable; and if due and reasonable diligence is used by the assignee, to procure payment from the maker, by the speedy commencement and prosecution of a suit against him, and satisfaction cannot be obtained upon the judgment and execution in such suit, the assignor is responsible for the amount. But without such suit, no action lies against the assignor. It is also provided by the statutes of Kentucky, and the substance of these statutes has been incorporated into the rules of the Circuit Court, that no person shall be permitted to deny his signature, as maker or as assignor, in a suit against him, founded on instruments of this nature, unless he will make an affidavit denying the execution or assignment.
These explanations are necessary, to enable us more accurately to understand the nature and bearing of the objections relied on at the bar, to reverse the present judgment.
The first objection that occurs, upon the examination of this cause, is, that the note for 311 dollars and 31 cents, is not stated in the declaration to be payable at any particular time; and if this be not a substantial infirmity in the count, the conclusion of law is, that the note was due presently, or on demand. Now, the record of the suit, which is offered to show due diligence in endeavouring to recover this note from the maker, is not founded on a note payable on demand, but on a note payable twelve months after the date; so that there is a material variance between the note declared on in this suit, and the note which was declared on in the record offered in evidence. If we admit the copy of the note in the same record to be evidence, a farther difficulty is presented; for on its face, the note purports that, 'twelve months after date, the President, Directors and Company of the Lexington Manufacturing Company promise to pay to James Johnson an...
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