#### James Branaugh & Son *v.*Robert Mills.

Demurrer — Pleading — Ordinary Diligence — Suspension of Courts by Legislative Acts.

Where the holder of a note fails to bring suit upon same during the life of the obligor, he is ordinarily held to be guilty of negligence. But where the Legislature suspends for a given period all laws requiring Circuit Courts to be held for the trial of causes, and during this suspension the obligor dies, the holder of the note is not held to be guilty of negligence and a lack of diligence in prosecuting his cause should he fail to bring an action on the note until after the death of the obligor. A demurrer to an original and amended bill should, therefore, have been overruled.

APPEAL EROM CHRISTIAN CIRCUIT COURT.

June 1, 1867.

Opinion oe the Court by

Judge Hardin :

The appellants, as plaintiffs in the court below, brought this suit against the appellee, Robert Mills, to recover upon his alleged liability as survivor of Thomas Hall, deceased, on their assignment of a promissory note on O. E. Merriwether for $1,800, dated the 2dth of September, 1860, and payable eight months thereafter to said Mills, who assigned it to the firm of Hall & Mills, consisting of said Hall and himself, who assigned it to the appellants. The petition exhibits a transcript of a suit by the appellants brought on the 9th of February, 1863, on the note in the Christian Circuit Court, against E. G. Sebree, as administrator of Merriwether (alleged to have died in December, 1861), and also exhibits the proceedings and record of a suit of said administrator *628against said Merriwether’s heirs and creditors by which it appears, that although Merriwether died possessed of an estate amounting to $34,659.48, he was so much involved that his general creditors could only receive in the distribution of his estate seven and three-quarters cents upon the dollar of their demands. It further appears that the administrator, Sebree, resided in Todd county, which was the county of the intestate’s late residence, and in which the administration was granted, and that before judgment was obtained in the suit in the Christian Circuit Court the administrator had filed his petition against the appellants and other creditors of Merriwether in the Todd Circuit Court for a settlement and distribution of the estate of Merriwether, as an insolvent estate. It also appears that in the suit in the Christian Circuit Court the appellants obtained a judgment against said administrator on the 31st day of March, 1863, on which an execution was issued, directed to and received by the sheriff of Christian county on the 18th day of April, 1863, which was returned indorsed in substance, *“*no property found.” It further appears that the Christian Circuit Court being held before that of Todd county, the appellants by suing in Christian were enabled to obtain judgment' sooner' than they could have done in Todd county.

The court having sustained a demurrer to the petition the appellants filed an amended petition, alleging that from the maturity of said note till the time of said Merriwether’s death he was a resident of Todd county, and that during that time no Circuit Court was held in Todd county. That by an act of the Legislature, approved May 24, 1861, all the courts of the Commonwealth w-ere suspended until the 1st day of January, 1862, and that the fall term of the Todd Circuit Court was, moreover, suspended on account of the occupancy of the county by the military forces of the so-called Confederate States, and that no judgment could have been obtained against Merriwether in his lifetime on the note in Todd county, or any other county in Kentucky. That Sebree was appointed the administrator of Merriwether on the 23d day of April, 1862, and was then, and continued to be, a resident of Todd county, but that all .the personal estate and most of the real estate of Merriwether was in Christian county, and that the execution was issued on the judgment in the Christian Circuit Court “ as soon as the clerk and deputies thereof could issue the same, and *629the business of said office would permit, there being a large number of executions to issue after said term.” The amended petition contains many other averments not deemed necessary to be here recited.

A demurrer being also sustained to the amended petition, and' the plaintiffs failing further to plead, a judgment was rendered for the defendant, from which this appeal is prosecuted.

By an act of the Legislature, approved March 1, 1860 (2 Stanton’s Rev. Stat. 741), it is provided that the Circuit Court for Todd county, wherein Merriwether resided, should thereafter be held, commencing on the third Mondays in April and October, and by the same act, the terms of the Christian Circuit Court are fixed to commence on the third Mondays in March and September. But by an act approved May 24, 1861, all laws requiring Circuit Courts to be held in this State, except for the trial of causes, other than actions for debt, were repealed until the 1st day of January, 1862. This act took effect on the very day of the maturity of the note, and continued in force till after the death of Merriwether, and would certainly have prevented the recovery of a judgment against Merriwether if suit had been brought on the note.

While it is true, as repeatedly held by this court, that the assignee must use due diligence in commencing and prosecuting his suit, as well as in enforcing his judgment when obtained, and to do so, should, as a general rule, bring suit to the first term of the court at which he can obtain judgment, as was said by this court in Taylor, etc. *v.*Daniel, 9 B. Mon. 55, “it never has been held that the assignee was bound to use all possible diligence in his remedy against the obligor, but only such diligence as a man of ordinary prudence would use in the collection of his debts.” And inasmuch as to have brought suit against Merriwether, at any time while he lived, after the maturity of the note could not have enabled the appellants to obtain a judgment against him, and as the reason which ordinarily exists for requiring suit to be brought' to the first term at which the assignee could sue did not exist in this case, we think there was no want of diligence in not suing Merriwether in his lifetime. Nor, regarding the statements of the petition and amended petition as true, as they are admitted to be, on demurrer, do we perceive any such a want of diligence *630on tbe part of the appellants afterward as to release the assignor of the note.

*Siites &*Bullitt, for Appellants.

*Phelps &*Campbell, for Appellee.

Wherefore, the judgment sustaining the demurrer and dismissing the petition is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.