#### William Thompson, Appellant, v. George Armstrong, Appellee.

APPEAL FROM MADISON.

The assignor of a note for the payment of money or a specific article of property, is not liable, unless due diligence has been used to recover of the maker, and a suit in June, 1818, upon a note made in August, 1814, and payable in January, 1817, which was assigned in March, 1815, is not due diligence.

A note for the payment of a certain sum of money “ which may be discharged in pork,” is assignable.

An averment of the insolvency of the maker, is sufficient to excuse the use of due diligence.

This was an action commenced by the plaintiff, the appellant, against the appellee, in the Madison circuit court, upon his liability as assignor of a promissory note. The note was executed in the state of Kentucky by one Colston 0. Wallis, on the 30th day of August, 1814, for the payment of a cer*49tain sum of money in pork, at a stipulated price, made payable to the defendant on the first day of January, 1817. On the second day of March, 1815, the note was assigned by the defendant to, the plaintiff. The declaration contains no averment of the place of assignment. It further appeared, that on the first day of June, 1818, the plaintiff commenced an action in the Muhlenburgh circuit court, state of Kentucky, against the maker of the no'te, and prosecuted him to insolvency. The second count in the declaration, contains all the preceding averments, with the addition, “that at the time the note became due and payable, the maker was insolvent, and entirely unable to pay the said note or any part thereof, and has ever since continued, and still is, insolvent and unable to pay the same.” To this declaration there was a demurrer, which the court sustained, and thereupon the plaintiff appealed, and assigns for error the judgment of the court below in sustaining the defendant’s demurrer.

Chief Justice Reynolds,

after stating the facts of the case, delivered the opinion of the court. The court is called upon to say, whether, from the state of facts as set out by the plaintiff, he has used due diligence to obtain the amount of the note from the maker. This the court can not do. It is not averred where the note was assigned. Suit then, having been commenced in Kentucky, the court can not know how many terms of the court in that state intervened, (if any) between the assignment of the nove and the suing out the writ original against the maker, and for aught that appears, suit may have been commenced at the first term after the assignment. The court is inclined to think this ought to appear from the declaration, and that therefore the first count is defective as being too uncertain.

The next objection taken, and which we are called upon to decide, is, that the note was not assignable. If we consider this objection, it will be by presuming a fact not averred, to wit, that the note was assigned in this state. Yielding to that presumption, and the court can not entertain a doubt, but that agreeably to the spirit and true intent and meaning of the statute authorizing assignments, the note in this case was properly assignable.* That statute authorizes the assignment of notes for the direct payment of money, or for the direct payment of a specific article of property; a fortiori, then, when the note is for a stipulated sum of money to be paid in property.

The next question presented for the consideration of the *50court is, whether the averment of the insolvency of the maker, in the second count of the declaration, be sufficient to excuse the use of due diligence. Upon this point, it does seem to the court, that the human mind can not be brought to doubt. If there is an utter incapacity to pay, whence the necessity of resorting to the law ? The law never requires the performance of a vain and useless act, and surely, a suit would be worse than idle, against a man who is utterly in-insolvent, and would have no other tendency than to multiply costs and increase the party’s demand. If the court is correct in this view of the subject, the court below erred in sustaining the general demurrer to the whole declaration. It is therefore considered by the court, that the judgment of the court below be reversed, that the plaintiff, recover his costs, and that this cause be remanded to the circuit court of Madison, for new proceedings to be had not inconsistent with this opinion, (a) (1)

Judgment reversed.

*

Laws of Territory, 1807, page 48.

(a)

Cases on assigned notes, against the assignor. Mason v. Wash, ante, page 39. Tarlton v. Miller, post. Lusk v. Cook, post.

(1)

See note to the case of Mason v. Wash, ante, page 39.