sideration-money, in case a better title should appear. He then contended, that although the receipt, on the back of the deed, would of itself be sufficient to entitle the defendant to a verdict, yet, there was a covenant in the deed, that he, the grantor, Bell, was lawfully seised of a good estate in fee, &c. upon this he chose to rely on the present occasion. The law, he said, was clear, that an action would lie on this covenant, whenever a defect of title was discovered, even before eviction by suit at law. (Wood. Conv. 403, 4. Pringle v. Executors of Witten, ante.) And if the action of covenant would lie in such a case, the defendants, when sued on the bond for the consideration-money, could plead it in discount, and set up the value of the land taken away by the elder grant against the plaintiff's demand on the bond.

A surveyor was then called, who proved the lines, and that part of the land was taken away by Daniel's elder grant, but that the injury would not be so great as to defeat the main object the purchaser had in view, when he purchased. Whereupon the jury, by direction of the court, deducted the value of the land so taken away by the elder grant, from the amount of the bond, and gave in favour of the plaintiff, a verdict for the balance.

1793.

Adm'r of
Bell

V.

Adm'rs of
Huggins.

September
Term.

If the effects

of an intestate

The ORDINARY OF CHARLESTON DISTRICT against

CORBETT & LIGHTWOOD.

THIS was an action of debt, brought against the defends are carried off ants, who were securities in an administration bond, for by an enemy Luke Stoutenburgh, administrator of William Stouterburgh, stration com deceased.

mitted, it shall exonerate the

securities to

stration bond,

to be consi

lateral under

To this bond the defendants pleaded a performance of the admini- the condition. The assignee of the ordinary, Richard who are only Wainwright, produced the inventory of the deceased's en dered as col- tate, to the amount of 24,169/. 1s. 6d. currency, which, it was said, charged the administrator; and as he had filed, chargeable by or rendered, no account of his administration, it was con-" the performance on the tended, that he made himself liable to the amount of the part of the administrator, appraisement, and, consequently, that his securities were of an enemy, chargeable for that sum.

takers,

or by the act

which pre

from perform

ing.

vents them For the defendants sundry witnesses were called, who · proved that during the war, when the British general Prevost's army invaded this country, the plantation of the intestate was broken up-all his negroes carried off---his house burnt-and near 800 ounces of plate taken away; so that the estate was wholly ruined by the devastation of the enemy. And that Luke Stoutenburgh, the administrator, died during the confusion of the war, before it was in his power to make any due or regular return of his administration to the ordinary's office.

The counsel for the defendants then contended, that as this estate became insolvent by the casualties of war, and not by default of the administrator, the securities to his administration bond could not be chargeable in law, but were discharged from their obligation by the act of an enemy, which rendered it impossible for the administrator to perform. That the securities never could be supposed to be answerable for the solvency of an estate, only for the good conduct of the administrator. no fault in the administrator.

That in this case there was That the act of God, or the

1793.

Ordinary of
Charleston
District

act of an invading enemy, will excuse a man from the performance of any duty whatever. That if the negroes had died by famine or disease, the administrator would have been excusable; and so as they were carried off by the enemy, he was, in contemplation of law, excusable also, which Lightwood. is tantamount to a performance of the condition in the

bond.

RUTLEDGE, Ch. J. in charging the jury, said, that this bond was for the performance of covenants on the part of the administrator; and that the defendants, his securities, were to be considered as collateral undertakers. That it was a well known rule, both of the civil and common law, that if the party performs, or if it is rendered impossible for him to perform, that in either case, both he and his securities shall be exempt from the penalty annexed to the obligation; and that the act of God, or of an enemy, were the highest excuses known in law for the non-performance of a contract.

The rest of the court concurred, WATIES, J. being ab

sent.

V.

Corbett and

September

Term

When a note CASE

is indorsed

over after it indorser. becomes due,

HALL against SMITH.

on a promissory note, against the defendant as The defence was laches in the holder, in not the rules with endeavouring to recover the money from the drawer. To rebut the force of the defence, the plaintiff gave in

respect to due

diligence are

inapplicable. evidence the insolvency of the drawer, which was not disDuring the ex

istence of the puted; but the case turned upon the supposed neglect of

instalment

law, the local the holder, in not recovering before the drawer became in

circumstances

of the country solvent. It was admitted, that if the suit had been com

ought to be

taken into menced for January return, 1790, the debt would have consideration, been paid.

which would

be of great weight in de

casion.

It appeared on the trial, that this note was negotiated by termining the the defendant to the plaintiff, on the 19th of November, jury on the present oc- 1789, some time after it became due; and on the day fol lowing, he placed it in the hands of an attorney of the court for recovery. The attorney, as was customary, wrote a letter to the drawer, but did not receive an answer until after the return day of the following January term;" in consequence of which, the suit was not commenced till the return day in March, 1790. The instalment law then in force, required a demand of security thirty days before a suit could be commenced, and it was customary to lodge. writs against persons residing in the country, ten days before the return day. The question was, therefore, whether, under these circumstances, the holder, or his attorney, could be chargeable with such a neglect as would destroy his right of action against an indorser.

RUTLEDGE, Ch. J. This is a matter which turns upon the use or neglect of due diligence, which is a subject very proper for the consideration of merchants, in which the course and usage of trade in this country, as well as its local situation, ought to be brought into view, and duly weighed. In England, where there are great monied capitals, and banking establishments, from whence money can at all times he

casily drawn to answer the purposes of trade, by men in good and solvent circumstances, a greater degree of strictness is observed, than can easily be established in this country; especially among planters, who can only bring their crops to market at one season of the year, and who are often obliged to sell them on a credit to the merchants; who are, on the other hand obliged, from the nature of trade, to give large credits to the planters. In this kind of mutual intercourse then, the strict rules observed in England, with regard to promissory notes, are not altogether applicable to the local situation of Carolina. The great question for the jury, therefore, in this case, is, whether a reasonable diligence has been used or not? Such as a prudent man, in his ordinary affairs, would observe, where his own interest only was immediately concerned. But it must be recollected also, that this note was indorsed over, after it was due, and therefore the law presumes in such case, that the indorsee took it upon the credit of the indorser, and not upon the credit of the drawer. (3 Durn. & East, 80. 83.) It is in such case considered as a new drawn note, by the indorser. Under these circumstances, therefore, although the indorsee may recover against the drawer, it is not subject to such strict rules as a note would be which was indorsed before due. In every such case, the indorsee himself must have given indulgence to the drawer, before he negotiated it; and it would be hard indeed, if the holder should suffer for a further reasonable indulgence afterwards, which the indorser himself had shewn before he indorsed it. Besides, the instalment law altered the nature of proceedings here exceedingly. The very end and design of it was to create delay, and to throw obstacles in the way of recovering debts. Upon the whole, I am clearly of opinion, that instead of an unreasonable delay, very unusual diligence has been used. Of this, however, the jury are to judge.

BURKE, J. of the same opinion.

1793.

Hall

V.

Smith