The only point of the exceptions relied upori at the argument was to the instructions of the court • below upon the power and right of the defendant to prove the debt in insolvency. The goods were properly sold upon credit; the note well taken in the name of the consignee; the consignee was greatly in advance to the consignors. The purchaser of the *364goods and maker of the note having gone into insolvency, what might and should the consignee do with this note against the insolvent ?
The court below instructed the jury, in substance, that the consignee was bound to give notice to the consignors of the note and of the insolvency of the maker, and to follow any instructions he might receive from the consignors, but, if he failed to receive any, to use all reasonable care and skill in collecting the debt for the consignors, and if, acting in good faith and with prudence and care for the best interests of the consignors, he proved the note in insolvency, such proof would not make him responsible for the amount of the note.
Of these instructions the plaintiffs surely had no just ground of complaint. Whether they contract and abridge the rights of the defendant it is not necessary to determine. There could not well be an absolute rule that the consignee should or should not prove a claim like this in insolvency. The question as between him and the consignors must, it would seem, be always one of good faith and reasonable diligence in the collection of the debt.
A point was made in the argument, which does not appear to have been suggested at the trial, that -as the consignors were citizens of another state, and the note was not in terms payable in this commonwealth, the debt, if not proved in insolvency, would not have been discharged. The place of payment of the note does not clearly appear by the bill of exceptions. But assuming that fact to be as stated, yet as upon failure to prove the debt there could be no dividend, the effect of the discharge was one only of the facts to be weighed in determining what due diligence in the collection of the debt required.
The case cited by the defendant, of Blackman v. Green, 24 Verm. 17, does not seem to us to conflict with the instructions given to the jury in the court below. The case proceeded upon the ground that no notice was given to the consignor, and no opportunity given to discharge the lien of the consignee upon the note.
Exceptions overruled.