#### Robert M. Tarlton, Appellant, v. George Miller, Appellee.

APPEAL FROM GALLATIN.

To excuse due diligence, an averment in the declaration that “ at the time the note became due and payable, diligent search was made at the said county for the maker, for the purpose of demanding payment thereof, but that he could not be found,” is insufficient.

This was an action commenced in the Gallatin circuit court, by Miller against Tarlton, upon his liability as assignor of a promissory note, executed at the county of Gallatin by one Squire Brown, to Tarlton, and by him assigned to Miller. The *69first count of the declaration averred that, “ at the time the note became due, diligent search was made at the said county, for the said Brown, for the purpose of demanding payment of the said note, but that said Brown could not on such search be found—that the said note remains unpaid, of which the said Tarlton had notice, whereby an action has accrued,” &c. There was also a count for money had and received. On the trial, the defendant moved the court, in conformity with a statute of this state, to instruct the jury to disregard the first count, on the ground of its being defective, which motion the court overruled, and gave judgment for the plaintiff, from which judgment the defendant appealed.

Opinion of the Court by

Chief Justice Reynolds.*

The question to be decided in this case is, is the first count sufficient ? I suppose the counsel who drafted the ^declaration intended to present a case which would excuse the use of due diligence ; but surely, it can not be seriously contended, that because the maker of a note does not reside, or can not be found in the county in which the note was made, that therefore the assignor becomes liable. It may be, that he may reside in the next adjoining county, or some other part of the state; if so, I conceive it to be the duty of the assignor to seek him. The question of due diligence having been settled by this court to be by suit, that course can not be dispensed with, where the process of the law can reach the maker, and prove availing.

It has been contended by some, that where the maker has absconded or left the state, the assignor is not liable until suit by attachment is prosecuted. This question is not now necessary to be settled, as the declaration contains no averment of the absence of the maker from the state. But it is said that the facts disclosed on the trial show such absence. My answer is, that this is showing facts not averred in the declaration, and can not be regarded upon a motion to instruct the jury to disregard a faulty count—such motion standing upon the same gromids as a general demurrer. We are therefore of opinion, that the judgment of the court below be reversed, and the cause remanded for new proceedings to be had, not inconsistent with this opinion.

Separate opinion of Justice J. Reynolds. The record shows this case. That one Squire Brown made his obligation to Tarlton for a sum of money. Tarlton assigned the same to George Miller, the plaintiff below, for value received. That Brown left the county before the bond became due, so *70that no diligence by suit could be used at the time the bond became due, to get the money of Brown. The declaration states, that the bond was made and assigned in the county of Gallatin. The question is, was Brown’s absence equivalent to due diligence by suit, in order to obtain the money 1 I think it was. Diligence is now explained by the court to mean a suit at law, yet when the person against whom the suit is to be brought is not in the county, it would be useless to commence it. This allegation is contained in the declaration, and it is the same as if a suit was prosecuted without getting the money. There can be no necessity for stating the place of residence of the maker of the note, as was contended by plaintiff in error, to show that he had left it—stating the place where the bond was made is sufficient. A person having no permanent residence at any particular place, may make a note, and it would therefore be impossible to show his residence. A transient person may make a note, and leave the place where it was made immediately ; it would then be unreasonable that the assignee should lose his action against the assignor, because the maker had no residence at the place where the note was made.

Starr, for appellant.

Lockwood, for appellee.

There are other errors assigned, but I deem them not of such importance to justify a reversal of the judgment. The matter mostly contained in the bill of exceptions was proper for the jury to pass upon. I am therefore of the opinion that the judgment of the circuit court ought to be affirmed, (a) (1)

Judgment reversed.

*

Justice Browne having decided this cause in the court below, gave no opinion.

(a)

Vide Mason v. Wash, p. 39; Thompson v. Armstrong, p. 48; Lusk v. Cook.

(1)

See note 2 to the case of Mason v. Wash, ante, page 39.