Bank of the United States v. Tyler, 29 U.S. 366 (1830)

U.S. Supreme Court

Bank of the United States v. Tyler, 29 U.S. 4 Pet. 366 366 (1830) Bank of the United States v. Tyler

29 U.S. (4 Pet.) 366

ERROR TO THE CIRCUIT

COURT OF KENTUCKY

Syllabus

Action by the endorsees against the endorser of a promissory note, drawn and endorsed in the State of Kentucky.

The statute of Kentucky authorizing the assignment of notes is silent as to the duties of the assignee or the nature of the contract created by the assignment. It only declares such assignments valid, and the assignee capable of suing in his own name. But the courts of that state have clearly defined his rights, duties, and obligations resulting from the assignment. The assignee cannot maintain an action on the mere nonpayment of the note and notice thereof until the holder of the note has made use of all due and legal diligence to recover the money from the drawer, whose engagement is held to be that he will pay the amount if after due and diligent pursuit the maker is found insolvent.

The principles of the law of Kentucky relative to the liability of endorsees of promissory notes and proceedings to establish the same, as settled by the decisions of the courts of Kentucky.

A judgment does not bind lands in the State of Kentucky. The lien attaches only from the delivery of the execution to the sheriff. It then binds real and personal property held by legal title. An execution, returned, is no lien on any property not levied on, and no new lien can be acquired until a new execution is put into the hands of the sheriff, and none can issue while a former levy is in force. Any delay then by the assignee enables the debtor to alienate his property in the interval between judgment and the execution reaching the sheriff, as well as between the return of one and the lien acquired by a new execution.

By the law of Kentucky, no equitable interest in real or personal property, unless it is held by mortgage, deed of trust, or other encumbrance, can be taken in execution. A capias ad satisfaciendum is the only mode by which the equitable estate of a debtor or his choses in action can be in any way reached by any legal process. It may be the means of coercing the payment of the debt, and it must therefore be used. The return of nulla bona to an execution is in that state the only evidence of there being no property of the debtor on which a levy can be made. It is not evidence of there being no equitable interest which is beyond the reach of such process, or of his not having that kind of property on which a levy can be made.

After judgment obtained in the circuit court of the United States against the drawer of the note, a capias ad satisfaciendum was issued against him by the holder, and he was put in prison. Two justices of the peace ordered his discharge, claiming to proceed according to the law of Kentucky in the case of insolvent debtors, and the jailer permitted him to leave the prison. The jailer made himself and his securities liable for an escape by permitting the prisoner to leave the prison. Held that the neglect of the holder of the note to proceed against the jailer and his securities prevents his making of the endorser liable for the amount of the note.

Page 29 U. S. 367

The Court finds no express decision of the courts of Kentucky enjoining a plaintiff who has sued the drawer of a promissory note and intends to charge the endorser to proceed against a jailer and his sureties when the defendant has been suffered to escape, yet by the spirit of all the decisions he is bound

to do so. The general principle of all the cases is that a plaintiff must pursue with legal diligence all his means and remedies, direct, immediate, or collateral, to recover the amount of his debt from the drawer of the note or of anyone else who has put himself or has by operation of law been put in his place.

The decision of this Court in the case of Bank of the United States v. Weisiger examined and confirmed.

This was an action by the Bank of the United States against Levi Tyler upon two promissory notes, one for $3,900, dated 2 May, 1821, and payable sixty days after date, drawn by Anderson Miller, in favor 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 $3,800, payable to Samuel Vance, assigned by said Vance and by the defendant. In all other respects, it was like the note above stated.

On 24 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 29 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 19 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

Page 29 U. S. 368

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 17 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 28 March, 1822. On 3 April, 1822, a venditioni exponas issued, returnable the first Monday in June. It was returned on 17 of June, "unsold for want of bidders," and the sale was postponed, and alias venditioni exponas issued, tested 17 June, returnable on the first Monday in September, returned on the 13th. The sales, amounting to $10.50, were credited to another execution.

26 September, 1822, another fieri facias issued, which was levied on slaves and sale made. It was returned 9 December, 1822. The proceeds of the sale were $1,300.

19 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.

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

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

19 September, 1823, another venditioni exponas issued, and the property was sold. The proceeds amounted to $4.50. It was returned 19 December, 1823.

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

16 March, 1824, a capias ad satisfaciendum issued under which the defendant was committed, and so

Page 29 U. S. 369

returned on 26 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 27 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 endorser.

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

Page 29 U. S. 380

MR. JUSTICE BALDWIN delivered the opinion of the Court.

In this case the plaintiffs sue not as the endorsers of two notes, negotiable under the Statute of Anne, which has never been adopted in Kentucky, but as assignee for a valuable consideration of promissory notes, which are assignable by the laws of that state and on which the assignee may sue in his own name. 1 Kentucky Digest 99.

The first note was drawn by Anderson Miller, dated at Louisville, May 2, 1821, for $3,900, in favor of John T. Gray negotiable and payable sixty days after date, at the office of discount and deposit of the Bank of the United States, Louisville, Kentucky, for value received. The note was assigned in the following manner:

"For value received, I assign the within note to Levi Tyler or order, John T. Gray by Levi Tyler, his attorney. . . . For value received, I assign the within to the president, directors and company of the Bank of the United States, Levi Tyler."

As this note was drawn, assigned, and payable in Kentucky, the obligations and rights of the parties must depend on the laws of that state.

The statute authorizing the assignment of notes is silent as to the duties of the assignee or the nature of the contract created by the assignment. It only declares such assignment valid, and the assignee capable of suing in his own name, but the courts of that state have clearly defined the rights, duties, and obligation resulting from the assignment.

The assignee cannot maintain an action on the mere nonpayment of the note and notice thereof or of a protest to the assignor until the holder of the note has made use of all due and legal diligence to recover the money from the drawer. But if this fails, then the assignor may be resorted to on his assignment, which is held to be an engagement to pay the amount of the note if after due and diligent pursuit, the maker is insolvent. This contract results from the act of assignment, without any express agreement to be

Page 29 U. S. 381

answerable; the law is the same whether this contract is expressed in terms or is implied from the assignment; the rights and duties of the parties are the same in both cases. 4 Bibb 286; 1 Marsh. 229. This case may then be considered as an assignment of a promissory note, with an express promise by the assignor to pay if by legal process and due diligence the assignee is unable to recover the amount due from the drawer. Viewed in this light, the case is more readily comprehended.

The means which the assignee is bound to use, the time within which he must commence, and the diligence with which he must pursue his legal remedies against the maker and the extent to which he must carry them have been the subject of much litigation and discussion in the courts of Kentucky; they have, however, adopted the following as principles which must be taken to be the law of the state.

That the assignee is not bound to run a race against time, or to use extraordinary means; that he is not required to prosecute a drawer or obligor further than a man of ordinary prudence and diligence would do in a case where he was solely and exclusively interested. But in order to bring himself within these rules, he must commence a suit against the drawer at the first term after the note becomes due, if a judgment could be obtained then. He must sue within such time, before the term, as will authorize him to procedure judgment. After suit is brought, he must prosecute it to judgment without delay or giving time to the maker of the note. Though he is notoriously insolvent, and dies on the third day of the first term after the note becomes due, and no administration is taken out on his estate, the assignor is discharged if no suit has been brought. After judgment, there must be the same diligence in pursuing the debtor's property by execution as in the commencement of the suit. There must be no delay in putting the execution into the hands of the sheriff or in making sale of the property levied on; he must continue the process of execution until the property of the drawer is exhausted and the sheriff returns nulla bona to the last execution, and after his insolvency is thus ascertained, a capias ad satisfaciendum must be taken for his body,

Page 29 U. S. 382

and if he is committed, the assignee must show what has become of the debtor, and how he has been discharged.

If the debtor assigns property, it must be sold. If property is taken in execution and replevin bond given, the bond must be put in suit; if there is bail to the action, and the principal cannot be taken on a capias ad satisfaciendum, the bail must be pursued, and all incidental and collateral remedies which may accrue to the assignee must be adopted and prosecuted, and the discharge of the drawer by the insolvent act, at the suit of a third person, will be no excuse for any relaxation in the diligence required to fix the assignor, who is suable only after the exhaustion of all legal means of obtaining payment.

The cases on this subject have been collected in a note in 2 Pet. 338-340 [notes omitted -- see printed version], and were all cited and ably commented on by the counsel on both sides.

It is believed that the principles which exact such an unusual degree of vigilance from the assignee are peculiar to the jurisprudence of Kentucky, but they have been established by a long series of cases adjudged in their highest courts for many years; they have long formed the law of that state as to notes and bonds assigned under their statute, and the legislature has not thought proper to change it. The courts in Virginia have given a very different construction to their statute on the same object, and there are no decisions in any state which have extended the rule of diligence so far. But this Court has always felt itself bound to respect local laws, however peculiar, in all cases where they do not come in collision with laws of higher authority and more imposing obligation. Such a case is not presented in the record now under our consideration.

These are the duties imposed by the law of Kentucky on the assignees of promissory notes before they can commence a suit against the assignor on his promise. These rules are the law of this case, and although in our opinion they carry the doctrine of diligence to an extent unknown to the principles of the common law or the law of other states where bonds, notes, and bills are assignable, we must adopt them as the guide to our judgment. They must be considered with

Page 29 U. S. 383

a reference to the laws of Kentucky respecting judgments and executions in order to form a correct opinion of their true character. A judgment does not bind land in that state; the lien attaches only from the delivery of an execution to the sheriff; it then binds real and personal property, held by a legal title. An execution returned is no lien on any property not levied on, and no new one can be acquired until a new execution is put into the hands of the sheriff, and none can issue while a former levy is in force. 6 Kentucky Digest 485, sec. 8. Any delay then by the assignee enables the debtor to acquire, hold, or alienate his property in the interval between judgment and the execution reaching the sheriff, as well as between the return of one and the lien acquired by a new execution. There is therefore more reason in exacting strict diligence on the part of the assignee than in those states where real estate is bound by a judgment without an execution. On general principles, it is certainly a rule of very great "rigor" to require a capias ad satisfaciendum to be issued and served after a return of nulla bona. But as, by the law of Kentucky, no equitable interest in real or personal property, except where it is held or covered by mortgage, deed of trust, or other encumbrance can be taken in execution, a capias ad satisfaciendum is the only mode by which the equitable estate of the debtor or his choses in action can be in any way reached by any legal process. 1 Kent. Dig. 504, sec. 5, 505, sec. 6. It may be the means of coercing the payment of the debt, and it must therefore be used. The return of nulla bona to an execution, is, in that state, evidence only of there being no property of the debtor on which a levy can be made. It is not evidence of there being no equitable interests which are beyond the reach of legal process, or of his not having that kind of property on which no levy can be made. A debtor, confined by an execution from the federal courts, can only be discharged under the insolvent act of Congress passed January, 1800, the provisions of which are effectual to compel a disclosure of all his property. In the language of this Court,

"The coercive means of this law are to be found in the searching oath to be administered and in the fear of a

Page 29 U. S. 384

prosecution for perjury and recommitment in the same action."

Bank of the United States v. Weisiger, 2 Pet. 352.

The creditor has a right to use these coercive means, and where he intends to make the insolvency of the debtor the ground of a resort to the assignor of the note on which the judgment was obtained, he is by the principles of the Kentucky decisions bound to use them to the full extent authorized by the laws of that state, as expounded by its highest judicial tribunals.

In discarding from our minds all considerations unconnected with the peculiar local law which governs this case, and considering it in all its bearings on both parties, we are not prepared to say that either has any right to complain of the severity of the rules which impose on them their respective obligations. If the law merchant were to govern, the plaintiff would be without remedy.

Suing as the endorser of a negotiable note, he must fail for want of a protest or demand of payment of the drawer and notice to the endorser. The diligence exacted of him is quite as extreme, if not more so, as when he sues as assignee. He must not give the drawer time for one day beyond the days of grace or what local usage permits. His notorious insolvency, his being discharged as an insolvent debtor or a certified bankrupt, will not excuse the holder. This Court has decided at this term, in the case of Bank of the United States v. Magruder, that where a drawer of a note dies before it becomes due, and the endorser administers on his estate, demand of payment and notice to the endorser are indispensable. No decisions in Kentucky on assigned notes establish a more rigid doctrine than is applicable to endorsers by the law merchant. In such cases, demand and notice are required to fix the endorser, because the debtor may pay by the interference of friends, not because he is supposed to have the means of doing it otherwise. It is too late to inquire into the reason of these rules, which have become settled and established as the general law of negotiable notes in the commercial world and of assignable notes in Kentucky. They must be submitted to as the law of the contract into which

Page 29 U. S. 385

the parties respectively enter on becoming endorsers in the one case, and assignees in the other. If it is not going beyond the principles of the common law of England and this country, it is at least extending them to their utmost limits to say that the assignor of a note, without fraud or a promise to pay in the event of the insolvency of the drawer, should be liable by the mere effect of the assignment, and that there is no difference between his assigning with or without an express promise. It is at least testing the contract of assignment by the rules of the summum jus. Neither the Statute of Anne or of any of the states of this union making notes assignable (so far as is known) expressly impose on the assignor any obligation which did not attach to the assignment of a chose in action at common law. Such assignment are recognized, and though the assignee cannot sue in his own name, his rights are as much protected in courts of law as those of assignees, by virtue of the statute. 3 Bibb 293; 4 Bibb 557. It is not easy to assign any sound reasons for construing the assignment as, per se, importing a higher obligation in the one case than the other. But the law of Kentucky has given this effect to assignments of notes under the statute of that state, and as the plaintiffs cannot sustain this action in their own name without the aid of the law, they must submit to the conditions which the settled judgments on the action have imposed on them. If, in availing themselves of this strict obligation imposed on the assignor, they find themselves compelled to use a corresponding degree of vigilance on their part exceeding that which is required in other states under similar statutes, this Court cannot afford them an exemption from its exercise. The local law is clearly settled, and we must submit to it, however we might be inclined to construe the law if it were now open to a construction more consistent with that which has been uniformly given to statutes authorizing the assignment of bonds, bills, and notes.

In the application of these rules to the first note which is the subject of this action, the defendant admits that up to the time of issuing the first execution, there has been no want of due diligence on the part of the plaintiff; but he alleges that from that time, there was unnecessary delay in various

Page 29 U. S. 386

particulars which have been pointed out and dwelt upon with much earnestness. As the statement of the case contains the teste, the return day, the day of the return of each execution, and the time of their coming to the hands of the marshal, it is unnecessary to examine in detail the alleged instances of negligence by the lapse of time: but there is one rule for which the defendant contends, which deserves some more particular notice.

By the fifth section of a law of Kentucky, passed in 1811, it is made the duty of the courts of that state, to appoint by rule of court, some day in each month as a general return day of execution. The provisions of this law having been carried into effect; the defendant insists, that in the exercise of the legal diligence incumbent on the plaintiff, he was bound to take out his execution returnable on some rule day, and attend at the office to watch its progress and effect. We think this would be applying the doctrine of diligence with unreasonable strictness. We find no decision which warrants the extension of it to so extreme a point, and we are not disposed to go one step in advance of the principles heretofore adopted. The case of Bank v. Weisiger is conclusive on this part of the defendant's case; it was there settled, that a lapse of thirty-six days between the judgment and the delivery of the execution to the marshal, did not amount to that want of diligence which exonerated the assignor of the note on which the judgment was obtained.

We have been furnished with no adjudged cases in Kentucky, which fix any definite time within which an execution must be made returnable. On examining the executions which have issued on the judgment on the first note, they are all returnable within three months from their teste, and no period of three months has been suffered to elapse, within which an execution has not been in the hands of the marshal, unless when writs of venditioni exponas were out, and they appear to have issued in all instances within that period. The greatest time which has intervened between the issuing of an execution and placing it in the hands of the marshal, appears to be thirty-one days, and from the return of one execution or venditioni, until the issuing of another, thirty

Page 29 U. S. 387

days, and we are not aware that in any of these cases there is any decision that this would be a want of diligence in the assignor. In the absence of any such decision, and feeling at liberty to decide upon them as open questions, we are of opinion, that the plaintiff, in the proceedings subsequent to the judgment, has at no time omitted to pursue the maker of this note with all the diligence which the law required of him. On this part of the case, we think the decision of this Court in the case of Bank of the United States v. Weisiger is strongly applicable. That was a case of the assignee against the assignor of a promissory note. Judgment was entered November term, 1821. Execution issued 29 December was placed in marshal's hands on 19 January, thirty-six days from the entry of judgment; returned nulla bona, at March term 1822, the 3d day of the month, and a capias ad satisfaciendum issued on 11 April, 1822, thirty-eight days from the return day of the fieri facias. This was held not to be such a want of diligence as exonerated the assignor. This decision seems to us to cover all the ground assumed by the plaintiff, up to the time of the discharge of Miller from his imprisonment on the capias ad satisfaciendum, and thus far we think he has done or omitted no act which has impaired his right of action.

It remains now to consider the last allegation of the want of diligence imputed to the plaintiff, and its effect on the suit. Miller was arrested and imprisoned on 27 March, 1824, and on the same day was discharged by the jailer, on the order of two justices of the peace, acting or pretending to act under a law of Kentucky, passed in 1820, 1 Kent.Dig. 503, sec. 1 and 3, abolishing imprisonment for debt, and authorizing a justice of the peace, on application of any person in jail or in prison bounds, on reasonable notice to the party at whose suit he has been committed, to issue an order for his discharge.

It is not necessary to inquire whether this law would apply to process from the federal courts, so as to legalize the discharge of a prisoner from the execution issued in this case, and protect the jailer and his sureties from an action by the plaintiffs for an escape. The laws of Kentucky on

Page 29 U. S. 388

this subject are too clear to admit of a doubt; they authorize the discharge of a debtor from imprisonment, on making a schedule of his property, surrendering it to the use of his creditors, and taking the oath prescribed. 1 Kent.Dig. 490-492, act of 1819; 564, act of 1821.

It was under this law that the justices acted in issuing the order of discharge. But it could not apply to a commitment by the marshal, under an execution from the federal courts, because an express provision was made by prior laws, which made it the duty of the jailer to safely keep such prisoners, until they shall be discharged according to the laws of the United States. 2 Kentucky Digest 676. The act of 1798 provides; that jailers shall receive into their custody all persons committed under the authority of the United States, and keep them safely, until discharged by the due course of the laws of the United States, and the jailer is subject to the same pains and penalties for neglect of duty, as if the commitment had been by state authority. By the act of 1800, the marshal of the United States has a right to use any prison for the imprisonment of anyone by legal process, in the same manner as the sheriff of a county may, if the prisoner was delivered by him, and this law was unrepealed, and in force, at the time of Miller's discharge. To entitle a debtor to a discharge under the insolvent law of January, 1800, he must give the creditor thirty days' notice of his application, and take an oath that he is not worth thirty dollars, &c.

The jailer was bound to take notice of this law, and of the laws of Kentucky, which required him to detain the prisoner until he complied with these provisions; he knew the conditions of his bond, and acted at his peril in releasing him; without one day's confinement, without notice, oath, or the order of the district judge. The discharge was wholly unauthorized and illegal; the order of the justices did not protect the jailer, and he was liable to the plaintiff in an action for the escape, to the full amount of the execution.

The act of 1812, 2 Kent. Dig. 679, requires all jailers to execute, in their county court, a bond with one or more approved sureties in at least the sum of $1,000,

Page 29 U. S. 389

and as much more as the court may deem proper, payable to the commonwealth and conditioned for the faithful discharge of the duties of the office of jailer, which may be put in suit by any person injured by his acts. And the act of 1811 enacts that where a bond is given by any public officer to the commonwealth, the recovery against the principal and his sureties shall not be limited to the penalty, but they shall be liable according to law and to the full extent of the official obligations of such officer as the same are enumerated in the condition of such bond. 2 Kent. Dig. 978.

The remedy thus afforded to the plaintiff was a substantial one, extending to his whole claim if the jailer or his securities were solvent. It was not indirect, remote, or doubtful. He had acquired a new security, of which the assignor had a right to claim the benefit, but which he could not use for his protection; the plaintiff could alone sue for the escape or bring an action on the jailer's official bond, which enured to his use, but not to the use of the defendant. If this new security had been a bond for the prison bounds, there would be no doubt that it would be his duty to pursue the parties to it before resorting to the defendant, and it was equally his duty to pursue the jailer, and his securities, on his bond of office.

The jailer had violated his duty; his bond became forfeited; he and his securities had put themselves in the place of the debtor, who was permitted to escape, and they thus assumed all his responsibility to the plaintiff. No event could arise by which they could be discharged. A voluntary return or a recaption of the prisoner would not avail them; they were under a stronger and more direct obligation to pay the money than special bail, against whom it is admitted that legal proceedings must be used with due diligence before resorting to the assignor.

Although we find no express decision by the courts of Kentucky enjoining on a plaintiff the necessity of suing a jailer and his securities for the escape of a prisoner, yet it seems to us that in the spirit of them all, he is bound to do so. The general principle of all the cases is that a plaintiff must pursue with legal diligence all his means and

Page 29 U. S. 390

remedies, direct, incidental, or collateral, to recover the amount of his debt from the defendant or anyone who has put himself or has by operation of law been put in his place. This the plaintiffs in this case have wholly omitted, with a plain, undoubted cause of action against the jailer and his sureties, with legal means of compelling them to pay to the whole extent of their estates, and, for ought which appears, to the full amount of his claim against Miller, the maker of the note in question. They have made no attempt to assert their rights against either. According to the spirit and principle of the Kentucky decisions, we are constrained to say this is not due diligence, but that kind of legal negligence which entitled the defendant to a judgment in his favor in the circuit court.

This view of the case renders it unnecessary to consider the effect of the proceedings on the second note, which were conducted with less diligence than those on the first.

Having thus disposed of the first error assigned by the plaintiff, it remains to consider the second, which is that the circuit court erred in rejecting the evidence offered of Miller's notorious insolvency at the time the note became due.

If the court is correct in overruling the exception taken to the charge of the circuit court, we cannot reverse their judgment for overruling this evidence. It did not conduce to prove any fact material to the issue between the parties, which was not whether Miller was in fact insolvent, but whether the plaintiff had by due diligence ascertained his insolvency by legal process commenced in time, diligently conducted till its final consummation, and by the exhaustion of all incidental and collateral remedies afforded by the law, without obtaining the debt. The proof, or the admission of actual insolvency, would in no wise relieve the plaintiffs from the duty imposed on them; it would not accelerate their right to sue the defendant or enlarge his obligation to pay, which did not arise by the mere insolvency of the maker of the note, but by its legal ascertainment in the manner prescribed by the judicial law of Kentucky. That law has been recognized by this Court in the case of Weisiger as

Page 29 U. S. 391

applicable to cases of this description. To decide now that the plaintiffs could avail themselves of the insolvency of the maker, unaccompanied with the diligent use of all legal remedies, and in a case where we are of opinion that the plaintiffs have not made use of the diligence which under the circumstances of this case it was incumbent on them to use, would be to disregard all the principles of Kentucky jurisprudence as evidenced by the received opinion, general practice, and judicial decisions of that state.

We think it is not an open question whether these principles shall be respected by this Court, and cannot feel authorized to depart from them in a case to which their application cannot be questioned.

The judgment of the circuit court is therefore affirmed with costs.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Seventh Circuit and District of Kentucky and was argued by counsel, on consideration whereof it is ordered and adjudged by this Court that the judgment of the said circuit court in this cause be and the same is hereby affirmed with costs.