We think whether due diligence had been used in endeavoring to collect the debt from Drum-mond, was a question of law, as it arose in this case.— We also think as the Plaintiff did not take judgment against Drummond’s bail upon the return of two writs of sci.fa. instead of issuing a third, he did not use that diligence which the case required. Let the judgment be reversed, and a new trial granted.
Battle v. Little, 12 N.C. 381, 1 Dev. 381 (1828)
June 1828
·
Supreme Court of North Carolina
12 N.C. 381, 1 Dev. 381
James S. Battle v. Blake & Grey Little, adm’rs of Grey Little.
From Edgecomb.
What is due diligence is a question of law, and where a guarantor was bound after a due course of law'ugairist the principal creditor, neglect to enter a judgment against bail after two nihils discharges him.
COVENANT upon a deed executed by the Defendants’ intestate, whereby he had assigned severa] notes to the Plaintiff, and bound himself “ for the money due on them provided said Battle failed to get it after a due course of law.” The breach assigned was ‘Ghat Use Plaintiff had failed to get, after a due course of law, the money called for in a note made isy one John Drummond,” which was one of those assigned by the deed on which the action was brought.
On the trial, the, record of a suit against Drummond on this bond was introduced, in which, after many continuances and much unnecessary delay, as was contended, by the Defendants, a judgment was obtained upon which a ca, sa. issued. After a return oí non est inventus, two writs of scire Jadas were issued, which-were both returned nihil,, when instead of faking judgment against the bail by default, a third was issued, upon which Drummond , v as surrendered in discharge of his bail.
His honor Judge Martin, instructed the Jury that the Plaintiff was bound to that diligence which a prudent' man would use in his own business, and left it to them to say whether he had used that diligence or not. A verdict was returned for the Plaintiff, and the Defendants appealed.
Gaston, for the Defendants.
Hogg, contra.