delivered the opinion of the Court.
This was an action of assumpsit, commenced by McDonald, the assignee, against Jacobs, the assignor of a promissory note executed to him by Thomas A. Jacobs, in which McDonald recovered a judgment. The suit was instituted in a justice’s court, and taken to the Circuit Court.
On the trial in the Circuit Court, the note assigned was given in evidence, on which there was the assignment to McDonald, dated the 29th January, 1842. A summons was issued against the maker, T. A. Jacobs, on the 17th of February, 1842, returnable to the 5th March following, on which day judgment by default was taken against Jacobs. An execution was issued on the 8lh of March, and returned the 7th May, “ No property found.” A transcript was filed in the office of the clerk of the Circuit Court on the 2d July, and on the 23d July the execution was renewed for sixty days. By virtue of this execution, on the 6th day of August, Jacobs’ interest in a stallion, being one-half, was sold, which brought the sum of twenty dollars, and the constable returned, that he could find no other property on which to levy the remainder of the debt. Henry Jacobs, the defendant, then offered to prove that Thomas A. Jacobs had an interest in the stallion, and resided in the township in which suit was brought, during the winter of 1842, and until some time in April following, and that the horse was in the same township ; that the horse was worth a great deal more than he sold for, and would have paid the debt had he been offered for sale at an earlier day. This evidence was not admitted by the court, to which an exception was saved.
The court instructed the jury, at the instance of the plaintiff, McDonald, that if they find, from the evidence, that the note was assigned by the defendant to the plaintiff, and prosecuted with effect in a reasonable time, and that the returns on the execution show that the debt could not be made from T, A. Jacobs, then, in the absence of any other proof, they must find for the plaintiff.
In our opinion, the plaintiff had not shown a right to recover, inasmuch as no execution had issued from the clerk’s office of the Circuit Court, on the transcript of the justice. A constable cannot sell lapds under an execution. From aught that appears, Thomas Jacobs may have had land. Why was a transcript filed, if *568there were no land on which the lien of a judgment could attach? No capia1 can now issue against the defendant in debt, consequently, there is no mode o compelling a party to surrender lands in discharge of an execution issued fron a justice’s court. An execution from the Circuit Court can alone reach them, and it should have been issued, otherwise it does not appear but that the money could have been made out of the real estate of Thomas A. Jacobs.— Bank of United States vs. Tyler, 4 Peters’ Rep.
As the judgment will be reversed, we cannot refrain from an expression of the opinion, that the instruction did not contain the language employed by the statute, and we can see no reason for substituting the words, “reasonable time,” for “due diligence,” the words used by the act. And this appears the harsher, as instructions, couched in the language of the law, were asked by the defendant, and refused. If the steps taken in the cause had shown due diligence in the institution and prosecution of a suit, we would not have reversed the judgment for this' reason.
< As to the evidence which was excluded by the court, we are not prepared to say the court committed error in so doing. The object of the evidence was not to show, as it seems, a want of diligence in the plaintiff, but neglect in the officer. It is not every species of neglect, or failure to do his duty, which will deprive the assignee of his recourse against his assignor. It seems, the misconduct of the officer must be such as will clearly give a recourse against him for the debt, (3 Mon., Postlewait vs. Garrett,) otherwise the assignee will not be deprived of his recourse against the assignor. It would he very hard if a person, obliged to bring a suit, should suffer by the neglect or misconduct of those employed by the law to perform acts which can be done by them alone.
When a note is assigned, the assignee takes the place of the assignor, and he is required to use that diligence that a prudent man would use to collect the debt had it been his own; and he will not be permitted to let the knowledge of the fact that he has a recourse against the assignor relax his exertion to obtain payment. He is required to act precisely as a prudent man would act, who had no recourse against another in the event of losing his debt. What his conduct should be, must be determined from the circumstances of each case. It is the duty of the assignee to institute a suit against the maker, as promptly as he may prosecute it with due diligence. When the maker or obligor is in doubtful circumstances, but not insolvent, it is the duty of the assignee to proceed with the utmost promptitude, and to prosecute his suit with diligence to judgment, and sue out execution without any unreasonable delay.
The other judges concurring, the judgment below is reversed, and the cause remanded.