Gallatin County IL Archives Court.....Tarlton, Vs. Miller 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 4, 2008, 11:01 pm

Source: Reports Of Cases Illinois
Written: 1819-31

November Term 1823.


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 first 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 the 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 grounds 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 that 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? 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.

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.

Starr, for appellant. 

Lockwood, for appellee.

-------------------
*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.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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