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![handle is hein.slavery/ussccases0135 and id is 1 raw text is: SUPREME COURT.
THeE BANc oF THE UNITED STATES, PLAINTIFFS IN ERnOR .e.
LEvl TYtxan, DEFENDANT IN ERtot.
Action by the indorsees against the indorser of a promissory note, drawn and
indorsed in the state of Kentucky.
The statute of Kentucky authorising the assignment of notes, is silent as to the
duties-of the assignee, or the nature of the contradt 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 non-payment of the note and notice thereof,
until the holder of the note has made use of all due and legal diligence to re-
cover 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.
[380]
The principles of the law of Kentucky relative to the liability of indorsers of
promissory notes, and proceedings to establish the same, as settled by the de-
cisions of the cotrts of Kentucky. [381]
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. [383]
By the law of Kentucky, no equitable interest in Yeal or personal. property,
unless it is held by mortgage, deed of trust, or other incumbrance, canbe 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 in-
terest which is beyond the reach of such process; orof his not having that kind
of property, on which a levy can be made. [383] .
After judgment obtained in the circuit couit 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 orderea his dis-
charge, claiming to proceed according to the law of Kentucky in the case of
insolvent debtors; and the-jailor permitted him to leave the prison. The jailor
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 pro-
ceed against the jailo and his securities, prevents his making of the indorser
liable for the amount of the note. [388]](ViewImageLocal?handle=hein.slavery/ussccases0135&div=1&collection=&method=preview&ext=.png&size=3)