Mr Justice Baldwin
delivered the opinion of the court.
In this case the plaintiffs sue, not as the indorsers of two notes, negotiable under the statute of Anne, which has never been adopted in Kentucky, but as assignees for a valuable consideration of promissory .notes, which are assignable by the laws of that state, and on which the assignee may sue in his own name. 1 Kentucky Digest, 99.
The first note was drawn by Anderson Miller, dated at Louisville, May 2, 1821, for three thousand' nine hundred dollars, in .favour of John T. Gray, negotiable and payable sixty days' after date, at the office of discount and deposit of the Bank of the United States, Louisville, Kentucky, for value received. The note was assigned in. the following manner. " For value received, I assign, the within note to Levi Tyler or order, John T. Gray, by Levi Tyler, liis attorney." " For value received, I assign the within to the president, directors and company of the Bank of the United States, Levi Tyler."
As this note was drawn, assigned, and payable in Kentucky, the obligations and rights of the parties must depend on the laws of that state.
The statute authorising the assignment of notes is silent as to the duties of the assignee, or the nature of. the contract created by the assignment. It only declares such assignmént valid, and the assignee capable of suing in his own name ;,but the courts of that state have clearly defined the rights, duties, and obligation resulting from the assignment.
The assignee cannot maintain an action on the mere nonpayment of the note and notice thereof, or of a protest to the assignor, until the holder of the note has made use of all dué and legal diligence to recover the money from the drawer. But if this fails, then the assignor may be resorted toon his assignment; which is held to be an engagement to, pay .the amount of the note,- if, after due and diligent pursuit, the maker is insolvent. This contract results from the act of assignment, without any express agreement to be an swerablé; the law. is the same, whether this contract is expressed in terms, or is implied from the, assignment; the rights and duties of the parties are the same in both cases. 4 Bibb, 286. 1 Marsh. 229. This case may then be considered as an assignment of a promissory note, with, an ex-, press promise by the assignor to pay if by legal process and due diligence the assignee is unable to recover the amount due from the drawer, Viewed in this light the case is more readily comprehended*.
The means which the assignee is bound to use, the time within which he must commence, and the diligence with .which he must pursue his legal remedies against the maker, and the extent to which he must carry them,-have been the subject of much litigation and discussion in the courts of Kentucky: they have however adopted the following as principles, which must be taken to be the law of the. state:
That the assignee is no.t bound to run a race against titne, or to -use. extraordinary means; that he is not required to prosecute a drawer or obligor farther than aman of ordinary prudence and diligence would do in a case where he was s.olely and exclusively interested. But in order to' bring himself within these rules, he must commence a suit against' the drawer at the first term after the note becomes due, if a judgment could be obtained then. He must sue within such time, before the.term, as will authorise him to procure judgment. After suit is brought, he must prosecute it to judgment without delay, or giving time to the maker of the note. Though he is notoriously insol vent,-and dies on the third day of the first term after the note becomes due, and no administration is taken out on his estate, the assignor is discharged, if no suit has been brought. ' After judgment, there must be the same diligence in pursuing the debtor's property by execution as in the commencement of the -suit. There must be no delay in putting the execution into the hands of the sheriff, or in making sale of the property levied on; he must continue the process of execution until' the property of the .'drawer is exhausted, and the sheriff returns nulla bona to the last execution; and after his insolvency is thus ascertained, a capias ad satisfaciendum must be 'taken for his. body; and if he is committed, the assignee must show what has become of the debtor, and how he has been discharged.
If the debtor assigns property, it must be sold. If property is taken in execution, and replevin bond given, the bond must be put in suit; if there is bail to the action, and the principal cannot be taken on a capias ad satisfaciendum, the bail must be pursued; and all incidental and collateral remedies, which may accrue to the assignee, must be adopted and prosecuted; and the discharge of the drawer by the insolvent act, at the suit of a third person, will be no excuse for any relaxation in the diligence required to fix the assignor; who is suable only after the exhaustion of all legal means of obtaining payment.
The cases on this subject have been collected in a note in 2 Peters, 338, 339, 340; and were all cited and ably commented on by the counsel on both sides.
It is believed that the principles which exact- such an unusual degree of vigilance from the assignee, are peculiar to the jurisprudence of Kentucky; but they have been established by a long series of cases adjudged in their highest courts for many years •; they have long formed'the law of that state as to notes and bonds assigned under.their statute; and the legislature has not thought prqper to change it. The courts in Virginia have given a very different .construction to their statute on the same subject; and there are no decisions in any state which have extended the rule of diligence so far. But this court has always felt itself bound to respect local laws', however peculiar, in alteases where they do not come in collision with laws .of higher authority and more imposing obligation. Such a case is not presented in the record now under our consideration.
These are the duties imposed by the law of Kentucky on the assignees of promissory notes, before they can commence a suit against the assignor on his promise.' These rules are the law of this case;' and although in our opinion they carry the doctrine .of diligence to an extent unknown to the principles of the common law, or the law of other states, where bonds, notes, and bills are assignable, we must adopt them as the guide to our judgment. They must be considered with a reference to the laws of Kentucky respecting judgments and executions, in order to form a correct opinion of their true character. A judgment does not bind land in that state; the lien attaches only from the delivery of an execution to the sheriff; it then binds real and personal property, held by a legal title. An execution returned, is no lien on any property not levied on; and no new one can be acquired'until a new execution is put into the- hands of the sheriff; and none can issue while a former levy is in force. 6 Kentucky Digest, 485, sec. 8. Any delay then by the assignee enables the debtor to acquire, hold or alienate his property in the interval between judgment and the'execution reaching the sheriff; as well as between the return of one and the lien acquired by a new execution. There is therefore more Treason in exacting strict diligence on the part of the assignee, than in those states where real estate is bound by a judgment with-put an execution. On general principles, it is certainly a rule of very great rigour to require a capias ad satisfaciendum to be issued and served after a return of nulla bona. But as, by the law of Kentucky, no equitable interest in real or personal property, except where it is held or covered by mortgage, deed of trust or other incumbrance, can be taken in execution; a capias ad satisfaciendum is'the only mode by which the equitable estate of 'the debtor or his chosés in action can be in any way reached by any legal process. 1 Kent. Dig. 504, sec. 5, 505, sec. 6. It maybe the means of coercing the payment of the debt, and it must therefore be used. The return of nulla bona to an execution, is, in that state, evidence only of there being no property of the debtor on which a levy can be made. It is not evidence of there being no equitable interests, which are beyond the reach of legal process; or of his not having that kind of property on which no levy can be madei A debtor, confined by an execution from the federal courts, can only be discharged under the insolvent act of congress passed January 1800; the provisions of which are effectual to compel a disclosure of all-his property. In the language of this court, " the coercive means of this law are to' be found in the searching oath to be administered, and in the fear of a prosecution for perjury, and recommitment; in the .same action. Bank of the United States vs. Weisiger, 2 Peters, 352.
The creditor has a right to use these coercive means; and where he intends to make the insolvency of the debtor. the ground of a resort to the assignor of the note on which the judgment was obtained, he is by the principles of the Kentucky decisions bound to use them to the full extent authorised by the laws of that state, as expounded by its highest judicial tribunals.
In discarding from our minds all considerations unconnected with the peculiar local law which governs this case,' and considering.it in all its bearings on both parties; we are not prepared to say that either has any right to complain of ,the severity of the rules which impose on them their respec-. tive obligations. If the law merchant were to govern, the plaintiff would be without remedy.
Suing as the indorser of a negotiable note, he must fail, for want of a protest or demand of payment of the drawer, and notice to the indorser. The diligence exacted of him is quite as extreme, if not more so, as when he sues as assignee. He must not give the drawer time for one day beyond the days of grace, or what local usage permits. His notorious insolvency; his being discharged as an insolvent debtor or a certified bankrupt; will not excuse the holder. This court have decided at this term, in the case of The Bank of the United States vs. Magrjider, that where adrawer of a note dies before^ it becomes due, and the indorser administers on his estate, demand of payment and notice to the indorser are indispensable. No decisions in Kentucky on assigned notes establish a more rigid doctrine than is applicable to indorsers by the law merchant. In such cases demand and notice are required to fix the indorser, because the debtor may pay by the interference of friends; not because he is supposed to have the means of doing it otherwise. It is toó late to inquire into the reason of these rules; which have become' settled and established as the general law of negotiable notes in the commercial world, and of assignable notes in Kentucky. They, roust be submitted to as the law of the contract into which the parties respectively enter, on becoming indorsers in the one case, and assignees in the other. If it is not'going beyond the principles of the common law of England and this country, it is at least extending them to their utmost limits, to say that the assignor of a note, without fraud, or a promise to pay in the event of the insolvency of the drawer, should be liable by. the mere effect of the assignment; and that there is no difference between his assigning with or without an express promise. It is at least testing the contract of assignment by the rules of the summum jus. Neither the statute of Anne or of any of the states of this union, making notes assignable (so far as is known), expressly impose on the assignor any obligation which did not .attach to the assignment-of a chose in action at common law. Such assignments are recognized; and though the assignee cannot sue in his own name, his rights are as much protected in courts of'law as those of assignees, by virtue of the statute. 3 Bibb, 293. 4 Bibb, 557. It is not easy, to assign any sound reasons for construing the assignment as, per se, importing a higher obligation in the one case than the other. But the law of Kentucky has given this effect to assignments of notes under the.statute of that state ; and as the plaintiffs cannot sustain this action in their own name without the aid of the law, they must submit to the conditions which the settled, judgments on the action have imposed on thém: If, in availing themselves of this strict obligation imposed on the assignor, they find themselves compelled to use a corresponding degree' of vigilance on their part, exceeding, that which is required in other states under similar statutes ;- this court cannot afford them an exemption from its exercise. The local law is clearly'settled, .and we must submit to. it; however wé might be inclined to construe the law, if it were now open to a construction more'consistent with that which has been uniformly given to statutes authorising the assignment of bonds, bills and notes.
In the.application of these rules to the first note which is the subject of this action, the defendant admits, that up to the time of issuing the first execution, there has been no want of due diligence on the part of the plaintiff; but he alleges, that from that time, there was unnecessary delay in various particulars, which nave been pointed out and dwelt upon with much earnestness. As the statement of the case contains the teste, the .return day, the day of the return of each execution, and the time .of their coming to the hands of the marshal; it is unnecessary to examine in detail the alleged instances of negligence by the lapse of time : but there is one rule for which the defendant contends, which deserves some more particular-notice.
By the fifth section of a law of Kentucky, passed in 1811, it is made the duty of the courts of that state, to appointby rule of court, some day in each month as a general return day of execution. The provisions of this law having been carried into effect j the defendant insists, that in the exercise of the legal diligence incumbent on the plaintiff, he was bound to take out his execution returnable on some rule day, and attend at the office to watch its progress and effect. We think this would be applying the doctrine of diligence with .unreasonable strictness. We find no decision which warrants the extension of it to so extreme a point; and we are not disposed to go one step in advance of the principles heretofore adopted. The case of the Bank vs. Weisiger is conclusive on this part of thetiefendant's case; it was there settled, that a lapse of thirty-six days between the judgment and the delivery of the execution to the rnarshai, did not amount to that want of diligence which exonerated the assignor of the note on which the judgment was obtained.
-We have been furnished with no adjudged case's in Kentucky, which fix any definite time within which an execution must be made returnable. On examining the executions which have issued on the judgment.on the first note, they are all returnable within three months from their teste; and no period of three months has been suffered to elapse, within which an execution has not been in the hands of the marshal, unless when writs of venditioni exponas were out: and they appear, to have issued in all instances within that period. The greatest time which has intervened between the issuing of an execution and placing it in the hands of the marshal, appears to be. thirty-one days; and from the return of one execution or venditioni, until the issuing of'another, thirty days : ánd we are not aware that in any of these cases there is any decision that this would be a wan.t of diligence in the assignor. In the absence of any such decision, and feeling, at liberty to decide upon them as open quesi jns, we are of. opinion, that the plaintiff, in the proceedings subsequent to the judgment, has at no time omitted to pursue the maker ,of this note with all the diligence which the law required of him.- On this part of the case, we think the decision of this court in the case of the Bank of the United States vs. Weisiger is strongly applicable. That was a case of the assignee against the assignor of a promissory note. Judgment was entered November term 1821. Execution issued on the 29th of December; was placed in marshal's hands on the 19th of. January, thirty-six days from the entry of judgment.; return-' ed nulla bona, at M^rch term 1822, the 3d day of the month; and a capias ad satisfaciendum issued on the 11th of April 1822, thirty-eight days from the return day of the fieri facias. This was held not to be such a want of diligence afe exonerated the assignor. This decision seems to us to cover all the ground assumed by the plaintiff, up to the time of the discharge of Miller from his imprisonment on the capias ad satisfaciendum;, and thus far we think he has done or omitted no act which has impaired his right of action.
. It remains now to consider the last allegation of the want of diligence imputed to the plaintiff, and its effect on thé suit. Miller was arrested and imprisoned on the 27th of March 1824; and on thé same day was discharged by the jailor, on the order of/- two justices of the peace, acting or pretending to act under a law of Kentucky, passed in 1820, (1 Kent. Dig. 503, sec. 1 and 3), abolishing imprisonment for debt, and authorising a justice of the peace, on application of any person in jail or in prison bounds, on reasonable notice to the party at whose suit he has been committed, to issue an order for his discharge.
It is not necessary to inquire whether this law would apply to process from the federal courts; so as to legalize the discharge of a prisoner from the execution issued in this ¡case, hnd protect the jailor and his sureties from an action by the plaintiffs for an escape. The laws qf 'Kentucky on this subject are to6 clear to admit of a doubt: they authorise the discharge of a debtor from, imprisonment., on making a schedule of his property, surrendering it to the use of his creditors, and taking the oath prescribed. 1 Kent. Dig. 490, 491, 492, act of 1819; 564, act of 1821.
It was under this law that the justices acted in issuing the order of discharge. - But it could not apply to a commitment by the marshal, uiider an execution from the federal courts; because an express provision was made by prior laws, which made it the duty of the jailor to safely keep such prisoners, until they shall be discharged according to the laws of the United States. 2 Kentucky Digest, 676. The act of 1798 provides; that jailors shall receive intotheir custody all persons committed under the authority of the United Statés, and keep them safely, until discharged by the due course of the laws of the United States; and the jailor is subject to the same pains and penalties for neglect of duty, as if the commitment had been by state authority. By the act of 1800, the marshal of the United States has a right to use any prison.for the imprisonment of any.one by legal process, in the same manner as the Sheris' of a.county may, if the prisoner was delivered by him; and this law wasunrepealéd, and in force, tit, the time of Miller's discharge. To entitle a debtor to a discharge under the insolvent law of January 1800, he niust give the.credbor thirty days' notice of his application, and take an oath that he is not worth thirty dollars, &c.
The jailor was bound to take notice of this law, and of tjie laws of Kentucky, which required him to detain the prisoner until he complied with these provisions :, he knew the conditions of his bond, and acted at his peril in releasing him; without one day's confinement, without notice, oath, or the order of the district judge. The discharge-was wholly unauthorised and illegal; the order of the justices did not protect the jailor; and he was liable to the plaintiff in an, action for the escape, to the full amount of the .execution.
The. act of 1812, 2 Kent. Dig. 679, requires, all jailors to execute,,.in their county court, a bond, with one or more approved sureties, in at least the sum. of one thousand dollars, and as much more as the court máy deem proper; payable to the commonwealth, and conditioned for the faithful discharge of the duties of the office.of jailor; which maybe put in suit by any person injured by his acts. And the act of 1811 enacts, that where a bond is given by any public officer to the commonwealth, the recovery against the principal and his sureties shall nbt'be limited to the penalty; but they shall be liable according to law, and to the full extent of the officiabobligations of such officer, as the same are enumerated in the*condition of such bond. 2 Kent. Dig, 978.
T.he remedy thus afforded to the plaintiff was a substantial one; extending to his whole claim, if the jailor or his securities were solvent. It wás not indirect, remote, or doubtful. die had acquired a new security, of which the assignor had a right to.claim the benefit; but which he could not use for his protection : the-plaintiff could alone sue for the escape, or bring an action on the jailor's official bond, which enured to his use,"but not to the use of the defendant. If this new security had been a bond for the prison boiinds, there would be no doubt that it would be his duty to pursue the parties to it before resorting to the. defendant; and it was equally his dirty to pursue the jailor, and his securities, on his-bond of office.
The jailor had violated his duty; his bond became forfeited ; he and his securities had put themselves in the place of the debtor, who was permitted to escape; and they thus assumed all his responsibility to the plaintiff. No event could arise' by which they could be discharged. A voluntary return, or a recaption of the prisoner; would not avail them; they were under a stronger and more direct obligation to pay the money than special bail; against whom, it is admitted, that legal proceedings must be used with due diligence, before resorting to the assignor.
Although we find no express decision by the courts of Kentucky, enjoining on a plaintiff tjie necessity of suing a jailor and his .securities for the escape of a prisoner; yet it seems to us, that, in the spirit of them all, he is bound to do so The general principle of all the cases is, that a plaintiff must pursue, with legal 'diligence, all his means and remedies, direct, incidental or collateral, to recover the amount of his debt from the defendant, or any one who has put himself, or has by operation of . law been put in his place. This the plaintiffs in this case have wholly omitted ; with a plain, undoubted cause of action against the jailor and his sureties; with legal means of compelling them to pay to the whole extent of their estates; and, for ought which appears, to the full amount of his claim against Miller, the maker of the note in question. They have made no attempt to assert their rights against either. According to the spirit and principle of the Kentucky decisions, we are constrained to say this is not due diligence; but that kind of legal negligence, which entitled the defendant to a judgment in his favour in the circuit court.
This view of the case renders it unnecessary to consider thé effect of the proceedings on the second note; which were conducted with less diligence than those on the first.
Having thus disposed of the first error assigned by the plaintiff, it remains to consider the second; which, is, that the circuit court erred in rejecting the evidence offered of Miller's notorious insolvency at the time the note became due.
If the court are correct in overruling the exception taken to the charge of the circuit court, we cannot reverse then judgment for overruling this evidence. It did not conduce to prove any fact material to the issue between the parties: which was, not whether Miller was in fact insolvent; but whether the plaintiff had by due diligence ascertained his insolvency, by legal process.commenced in time, diligently conducted till its'final consummation,, and by the exhaustion of all incidental and collateral remedies afforded by the law, without obtaining the debt. The proof, or the admission of actual insolvency, would in no wise relieve the plaintiffs from the duty imposed on them ; it would not accelerate their right to- sue the defendant, or enlarge his obligation to pay, which did not arise by the mere insolvency of the maker of the note, but by its legal ascertainment in the manner prescribed by the judicial law of Kentucky. That law has been recognized by this court in the case of Weisiger, as appli cable to cases of this description. To decide now, that the plaintiffs could avail themselves of the insolvency of the maker, unaccompanied with the diligent use of all legal remedies ; and in a case where we are of opinion that the plaintiffs have not made use of the diligence which under the circumstances of this case it was incumbent on them to use, would be to disregard all the principles of Kentucky jurisprudence, as evidenced by the received opinion, general practice, and judicial decisions of that state
We think it is not an open question, whether these principies shall be respected by this court; and cannot feel authorised to depart from them in a case to which their application cannot be questioned.
The judgment of the circuit court is therefore affirmed with costs.
This cause came on to be heard on the transcript ef the record from the circuit court of the United States, for the seventh circuit and district of Kentucky, and was argued by counsel; on consideration ' Whereof, it is ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed with costs.