#### Bard *vs*McElroy’s Administrator.

Error to the Marion Circuit.

Assumpsit.

*Case*87.

Tie case stated.

Demurrer and pleas were filed, the demurrer overruled issues on the pleas, and found for plain*417tiff. If the issues involved the questions -made upon the .declaration, and they were found io,r the plaintiff, and the declaration, by *liberal intendment*or implication in its general averments, can be regarded as containing the proper averments, the verdict should -not 'be disturbed, unless the Court improperly instructed the jury.

*416
      *Pleading. New trial. Assignee arid assignor. Diligence.*

*April*25.

Judge Marshall

delivered the opinion of the Court.

This action was brought by the administrator of the assignee of' a note, against the assignor, and the case turns upon the question of due diligence in pursuing the remedy of the assignee against the obligor. The defendant filed a demurrer to the declaration, which was overruled, and at the same time filed the plea of *non-assumpsit,*upon which issue was taken and a trial had; anda ■verdict having been found for the plaintiff, under instructions given on motion of the defendant, a reversal of the judgment thereon is sought, upon the ground that the Court erred: 1st, in overruling the demurrer, to the declaration, and 2d, in refusing to grant a new trial as moved for by the defendant.

1st. Although the filing of the plea did not,- of itself, amount to a waiver of the demurrer, yet as the case was actually tried upon an issue involving all the questions made by the demurrer, and' as those, questions were actually presented b.y the evidence, and decided by the ver*417diet for the plaintiff, the declaration is entitled, in this Court, to all the aid which it can legitimately derive from he verdict, and especially to a more liberal construction-than it would receive, if standing simply upon a demurrer. Under this rule vve are of opinion, that although some of the facts on which the plaintiff’s cause of action depends, are not stated so specially as they should have been, yet by liberal intendment in favor of the verdicts, they may be under stood as embraced at least by implication in the general averments of the declaration. And if there was no ground for a new trial, that is if all the facts essential to a recovery by the plaintiff, were sufficiently proved, and the Jury were not misled by the Court, the judgment must be affirmed.

Eacts held sufficient to show due diligence in bringing suit.

2d, We therefore proceed to consider the question -of due diligence, as it arrises on the evidence.

The first objection is that the suit by the assignee., against the obligor was not brought in the proper county, nor in the proper time, The note was due on the 1st of January, 1843, and was assigned on the 7th. At that time the obligor, a young aran without family, was absent in one of the Southern States with a drove of horses., up to the time of his departure in the fall of 1842, his, residence had been for several years in the county of Marion, in which the assignee, and probably the obligee also, resided. His absence was expected to be, and was in fact temporary. Until he should return and take up h,i.s. residence in some other county, or at least abandon his residence in Marion, he must be regarded as still continuing it in that county. As this certainly did not take place before the Spring term of the Marion Circuit Court, Marion was the proper county in which to commence the suit against him, previous to that term. The suit having been properly commenced there, and having been continued the first term, upon the returnof “not found” on the summons and there being no proof thatthe obligor had returned to any part of the state, until after the expiration ■of that term, nor that there was any reason to suppose he would not return to the same county, the suit was property retained in the Marion Circuit Court, and could no£ i-’ave been safely brought any where else. And the alias *418summons having in fact been served upon him in May, 1843, the judgment at the October term, was as early as one could have been obtained by any course tvhicb it was the plaintiff’s duty to take, or which he might safely take. For if it were certain that after the obligor’s return he took up his residence in Adair county, in which the fall term would be some weeks earlier than in Marion, still the assignee having commenced one suit in the proper county, was not bound to commence another in Adair; and if he had done so his second suit might have been abated, on account of the pendency of the first.

Facts held sufficient to show diligence in issuing execution.

It is contended, however, that there was a want of due diligence in delaying the commencement of the suit, from the date of the assignment in January, until the 28th of March, leaving only two days for the service of process, in time fora judgment at the succeeding term of the Court-But as the defendant was in fact out of the- State, and did not return before the commencement of the first term, as the process might have been served in time, if he had been in the county; as the judgment was obtained as soon as it could possibly have been if the process had issued on the 8tb of January; as the suit might have been delayed for the very purpose of ascertaining, whether it might not be more effectually brought in some other county, and as under the actual circumstance its commencement prior to the Spring term, and to the return of the obligor, was but a formality, we think this objection should not prevail.

It is further objected, that there was a want of diligence in prosecuting the remedy against the obligor after judgment: 1st. In issuing the execution to Marion county, when, as it is alledged, the obligor, after his return, had taken up his residence in Adair, and had property there. And 2d. In not issuing the execution until 17 days after the rendition of the judgment.

A.s to the first of these points, it is manifest upon the facts already stated, that the execution was properly issued to Marion county, unless the obligor had a fixed residence, or at any rate, visible property in some other county, and the plaintiff could be charged with knowledge, actual or imputed, of the fact. If the jury might have *419found some of these facts, there is certainly no satisfactory evidence of any of them, as existing at the end of ten days from the judgment, when an execution might ■regularly have issued; and comparing the verdict with the instructions given on motion of the defendant, (and there was none beside,) the jury have not found any of them. The assignee was certainly not bound upon suspicion or •mere rumor, to issue his executions to various counties in search of the obligor or his property. The evidence authorizes the inference that if the execution had issued ■to the county of Adair, only ten days after the judgment, it might have been wholly unavailing: and we greatly ■doubt whether the assignee could, upon the facts now appearing, have safely relied upon such a course as evidence ■of due diligence. Although there is some vague testimony with regard to the obligor’s trading in stock of some ■sort, in the summer and fall of 1843, the weight of the ■evidence seems to be, that when he returned in the previous spring, he was regarded as entirely insolvent, and ■the proof authorized a finding that he was. in the same condition, and without fixed residence, when the execution might regularly have issued.

The failure of the assignee to issue execution for seven -days after it might have issued on his judgment, without any excuse fora delay Held to be such want of diligence ss exonerated the as» sisnee.

The execution then, so far as now appears, properly issued to Marion county, in which the judgment had been rendered, and the process executed.; and the only remain, ing question is whether the failure to have it issued for seven days after the plaintiff was entitled to it, as a mat. ter of course and without affidavit shows such a want of diligence as should defeat the action.

A much longer delay when sufficiently accounted for, ■has been regarded as not inconsistent with the reasonable dilligence required from an assignee. But in this case the delay is wholly unaccounted for. It does not appear that any step whatever, was taken by the assignee, to. cause ah execution to issue as soon as he was entitled to it, or before it did issue. And although an execution to Marion county, or even to Adair, might have been equally ineffectual if issued at the earliest day it is not absolutely certain that something might not have been made in Adair by the use of extraordinary diligence. The assignee having placed himself upon the principle (hat he was not *420bound to use extraordinary dilligence, must at least *beheld to the use*of ordinary diligence. That in its lowesS degree consists in pursuing the legal remedy against the obligor after judgement at such time, and in such manner, as by law he was authorized to do, without resorting to any extraordinary means of expediting it. And it is an indulgence to him which has perhaps been carried far enough, to say that he may excuse himself, from the consequence of a slight failure in this respect, by showing that so far as be was concerned, the usual steps were taken for causing the execution to be issued, as soon as it might be done. There being nothing of this sort shown in the present case, it is the opinion of a majority of this-Court, that on this point the plaintiff failed to establish the fact of due diligence, which was essential to his right of recovery.

*Shuck*for plaintiff: *Rountree and Fogle*for defendant

Wherefore the judgment is reversed and the cause remanded fora new trial, in conformity with the principles of this opinion.