after stating the facts of the case, delivered the opinion of the court. The court is called upon to say, whether, from the state of facts as set out by the plaintiff, he has used due diligence to obtain the amount of the note from the maker. This the court can not do. It is not averred where the note was assigned. Suit then, having been commenced in Kentucky, the court can not know how many terms of the court in that state intervened, (if any) between the assignment of the nove and the suing out the writ original against the maker, and for aught that appears, suit may have been commenced at the first term after the assignment. The court is inclined to think this ought to appear from the declaration, and that therefore the first count is defective as being too uncertain.
The next objection taken, and which we are called upon to decide, is, that the note was not assignable. If we consider this objection, it will be by presuming a fact not averred, to wit, that the note was assigned in this state. Yielding to that presumption, and the court can not entertain a doubt, but that agreeably to the spirit and true intent and meaning of the statute authorizing assignments, the note in this case was properly assignable.* That statute authorizes the assignment of notes for the direct payment of money, or for the direct payment of a specific article of property; a fortiori, then, when the note is for a stipulated sum of money to be paid in property.
The next question presented for the consideration of the *50court is, whether the averment of the insolvency of the maker, in the second count of the declaration, be sufficient to excuse the use of due diligence. Upon this point, it does seem to the court, that the human mind can not be brought to doubt. If there is an utter incapacity to pay, whence the necessity of resorting to the law ? The law never requires the performance of a vain and useless act, and surely, a suit would be worse than idle, against a man who is utterly in-insolvent, and would have no other tendency than to multiply costs and increase the party’s demand. If the court is correct in this view of the subject, the court below erred in sustaining the general demurrer to the whole declaration. It is therefore considered by the court, that the judgment of the court below be reversed, that the plaintiff, recover his costs, and that this cause be remanded to the circuit court of Madison, for new proceedings to be had not inconsistent with this opinion, (a) (1)
Judgment reversed.