¶1delivered the Opinion of the Court.
¶2Clay, the appellant, brought hispe tútion ant} summons against the appellees, on a note for $2240, executed by them directly to Clay. The appellees pleaded the following plea.
¶3“The plaintiff in his action against them ought not to have and maintain, because they say, that the note in the Petition mentioned, was made and executed without any good or valuable consideration.” And on this plea the parties went to trial,
¶4The evidence of the appellees showed in substance the following facts, omitting such parts as are impertinent:
¶5That Clay the appellant, possessed sundry shares 0f stock in the late Kentucky Insurance Company, some*nBe before the charter was to expire by James Prentiss procured a majority of shares in the stock of that bank, and thus acquired the as-c#ndency over it, and by his votes dispensed with the service of the directors for some months before *645the expiration of the charier, the bant being then in a sound »~i(l sol-vent condition; but that Prentiss immediately utter he tool this control, began a course calculated to destroy its credit ami bring it to insolvency; Unit he issued us much of its paper as could well be got into circulation; and applied the specie, the contents of the bill box and other funds of the bank to his own private purposes, until the bank was ruined. That one of the clerks of the bank began to give intimations to any that had .dock remaining in bank, that the bank would be, or was insolboot, and that they had better sell their stock to Prentiss, as iic continued to buy; that on P.entiss making propositions to the appellant to buy his stock, he, the appellant, before he closed, the bargain, enquired of sundry persons about the value of its stock, and the solvency of the institution, and the suspicions afloat relative to the unsound condition of the hank were communicated to him, and it wras intimated to him that the bank would .probably fail, or was insolvent, and he thereupon closed the bargain with Prentiss, and sold him his stock at the price of six thousand five hundred dollars, and Prentiss agreed to give the present appellants, or some of them as his endorsers, and executed and delivered to the appellant the following endorsed note:
¶6“Lexington, December 30, 1817.
¶7Six months after date í promise to pay John T. Mason, jr. or order, six thousand five hundred dollars, negotiable and payable at the ban,k of Kentucky, without defalcation, for value received.
¶8[Signed] James Prentiss.”
¶9Endorsed. For value received I assign the within to Sebree and Johnsons.
¶10[Signed] John T. Mason, jr.
¶11We assign the within to Green Clay.
¶12[Signed] Sebree & Johnsons.”
¶13Sometime in the same winter or spring, the In-sarance Company blew up, its insolvency became notorious, and the embarrassments and insolvency *646of Prentiss became well known. He conveyed his visible estate to sundry persons, in trust, to secure some of his debts, and on the 19th of March, 1818, he made one inclusive deed of trust of all before conveyed, and also what had been left out of former conveyances, to William T. Barry, .(Esq. in trust to secure John T. Mason, jr. for sundry endorsements, which he, Mason, had made for him, and among the rest, this.endorsement to Green Clay, and the succeeding day, more than three months before this note became due, secretly and in haste, he took his flight from the country, leaving his family in Lex-r ington, some supposing that he never would return j and others conjecturing that he might; that the different creditors and their trustees seized and took away his property, till his family stripped of every thing, ceased to keep house, and boarded with others. Barry proceeded under his deed of trust to sell all the estate contained in his conveyance, which he could find, for the indemnity of Mason.
¶14On the 25th of September, 1818, Clay issued, on his note to Prentiss, a capias returnable to the succeeding November term, which was returned, “no inhabitant,” fey the sheriff of Fayette, where Prentiss last resided. But before the return day of this writ, the endorsers accommodated this matter with Clay, and agreed with him to divide the debt into three' instalments, payable in one two and three years, and to give their separate notes for each, with additional security, one of which is the note in contest, and reads thus:
¶15“Lexington, October 28th, 1818.
¶16Two years after date we promise to pay Green Clay or order, two thousand two hundred and forty dollars, payable and negotiable at the Farmery’ and Mechanics’ Bank of Lexington, without defalcation, for value received.
¶17[Signed] Uriel Sebree,
¶18 John T. Mason, jr.
¶19 Rich. M. Johnson,
¶20 James Johnson,
¶21 William Ward,
¶22 Robert J. Ward,
¶23 Bénjamin Johnson
¶24l’h is arrangement was made without tíié cónsent of Clay in his absence, but in pursuance of his in-fetructions, and the suit of Clay against Prentiss was to be dismised. The counsel of Clay did not, at the moment give up the note of Prentiss to the brokers of this last note, because they did not require it to be done, but lie continued to hold it subject to their order or demand for sometime after-wards. The suit of Clay was not discontinued by an entry on record for a length of time, through the inattention of counsel. The entry was however ultimately made, and nd declaration was ever filed.
¶25After this evidence was closed on the part of the defendants below, the plaintiffs counsel moved the court to instruct the jury, that this whole evidence given on behalf of the defendants was incompetent, irrelavant and insufficient to prove or support the defendants’ plea. The court overruled this application, and the plaintiff excepted.
¶26There are several other legal questions raised in the record, and instructions given and refused, and exceptions taken. But as the discussion and decision of this question must supersede or involve many others, we will first consider it.
¶27It is clear that the defendants by their plea, whether it fitted the evidence or not, took upon themselves the onus probemdi, and their attempt was to bar the note by admitting its execution, and avoiding it. This motion was therefore in the nature of a motion to instruct as in case of a n onsuit, made oft the part of the defendant. Such motion is often made, not only because qf a variance between the declaration and the evidence, but predicated on the insufficiency of the evidence to support the declaration, because some important fact dr facts necessary to support the action is not proved. Then it answers in modern practice the office of a demurrer to evidence. And as it is indulged on the part of the defendant, when he holds the negative, to make the rights of the parties mutual and equal, a motion of the same nature may be allowed on part of the plaintiff, when he holds the negative. In all such motions, however, the evidence ought to *648be clear ah cl not contradictory or doubtful, and évJ cry fact which the evidence conduces to prove against the party making the motion, ought to be taken as proved.
¶28*648It has been insisted in Argument that tliis evidence tended tb impeach or show a failure of consideration in the note in contest, in two particulars.
¶29First, because the stock of Clay was worth nothing, and was of no value when he sold it, and that fact was known to him, and therefore, there was no consideration for the original note of Prentiss, and of course there could be no consideration for this note, as it was given for part of the sum scoured by the first. This conclusion seems to have had some weight on-lhe mind of the court below, as we find that court, after all tho evidence was given, instructing the jury, “that if tlrtiy believed from the evidence, that the sale and transfer of said stock was no injury to Clay, and no benefit to' Prentiss, there was no consideration for the note given by Prentiss to Mason, and assigned to Clay, and that neither Prentiss, nor their endorsers; were bound to pay it: and if the note sued on, was given in part discharge of the first, the latter would also be without consideration, and they ought to find for the defendant. But if they were of opinion that Clay had sustained an injury by the sale of his stock, or Prentiss was benefitted thereby, then there was a consideration for both notes.”
¶30In stating this logic on the part of the defendants he low, an important proposition or consideration is loft out of view, which, when brought in, overthrows the conclusion, and turns its point directly to the opposite side, and that is, tiie enquiry who rendered this stock held by Clay worthless in the first place, if Clay had clone it, and then had sold and transferred it to Prentiss, concealing what he had done while Prentiss was ignorant of it, then there would be some ground for the failure of consideration. But directly die reverse, from tlie evidence, is true. Prentiss himself had wrongfully ruined the bank and destroyed the value of the stock of Clay, of which he had the management, with *649put Clay’s assent. This laid a double obligation on Prentiss to make good the stock, and to pay its val,ue to Clay, even without any stipulation to that effect. Now if we suppose Clay to have been fully apprised of these acts of Prentiss, and that his stock was rendered wholly worthless by the management pf Prentiss, and that he had set up a claim against Prentiss tor these wrongs, and Prentiss to secure to him a compensation, had executed his note with the appellees as endorsers; can there be a plausible pretext for saying that the consideration of such note \yas not good/ Indeed this evidence, that Prentiss had firsjt by wrong, ruined the value of the stock of Clay, and then that the first note was given as the price of it, instead of weakening the consideration of the first note, renders it much stronger than it would be if the note was simply given for good stock of full value; because the claims of both law and conscience lay still more heavy on Prentiss to make the stock good, and to restore what by fraud and wrong both on Clay and the public, he had taken from him. Nor is there any difference between Prentiss and bis endorsers on his first note in this respect. They follow his fate, and claim their discharge, by discharging him. Every fact which conduced to shovy that he was not bound to pay, goes to release them, and every fact which shows Prentiss bqund, binds them. There' is n.o attempt to show that Clay ever induced them to become endorsers for Prentiss, or deluded them into the measure, or that he ever spoke to them on the subject. It is, therefore, evident that they trusted Prentiss and confided in him, and not Clay, and if they became responsible for Prentiss, at his solicitation, they must look to him for their indemnity, and not the endorser of the note. It follows therefore, that the instruction given by the court to the jury, was calculated to mislead them, b,y fixing their attention wholly to the question, how much the stock was worth when sold,' without regard to the question, who made it worthless, whether Prentiss or Clay. It also results that the court ought to have excluded tlxe evidence from the jury, .or to have decided it insufficient, unless some other ground is discov*650ered in it tending to show a failure of considera* ^0n‘
¶31This brings ns to the second and only remaining ground pointed out in argument, or which we can discover, on which it may be contended that the evidence conduced to show a failure of consideration. Thus far the court concurs in opinion, but on the .second point there is a difference.
¶32Judge Mills’ Opinion
¶33Prentiss having left the State in March, 1818, and Clay’s note falling due on the 30th of June, in the same year, and Prentiss not being returned, Clay might have issued his writ against Prentiss returnable to the September term of Fayette circuit court, But his writ was not issued till during the September term, returnable to the November term following, when it was returned, “no inhabitant,” when jf that or a similar return had been made to September, he would have saved his distance, and. manifested his diligence by matter of record. As he did not do so, it is insisted that he released his endorsers, and as they were not, when they executed the note now in suit, bound by their previous endorsement either in law or conscience, this note cannot bind them. In this respect the case is assimilated by the appellees to the case of Rallston vs. Sebastian and Bullitt, 3 Bibb, 261.
¶34It has been long settled by this court, that due diligence by suit was necessary to entitle an assignee to a recovery against his. assignor. That there are cases where the want of suit may be excused, all ad-But whether the case where a debtor of known residence, has left the State after the assignment, and before the note becomes due, is an exception, has not been expressly decided so far as we recollect. If such an absence frpm the State as that of Prentiss will not excuse the commence.ment of a suit I know not what kind will suffice. A flight from a multitude of debts, without it appearing that he left an atom behind uncovered by conveyances, to secure those debts, is one of the strongest character. The holder of the note ought *651either to sue, or suspend all proceedings till the return of the debtor. If he sues, neither his person or estate can be found, and tiie law compels no persea to acts vain and nugatory. If he suspends proceeding, how long shall he wait, for months or years, to see whether the absconding debtor will return? The fact, whether he will or will not return, rests on the debtor, and the creditor has no means of knowing his intensions. I am unwilling to say, that the as-signee must use extraordinary means to recover his debts, by searching for estate by attachment, or that the process of law is necessary to prove the absence of the maker of the note. Straining the diligence necessary to be used before the assignee has his recourse against the assignor to this extent, seems to fee carrying it beyond what is reasonable.
¶35*651it is singular this question has escaped decision heretofore, and it would relieve us from the dilemma of a difference of opinion where two judges alone can adjudicate.
¶36It becomes our duty to say something on the point now, for if it be against the appellees here, it may render unnecessary other questions in the controversy.
¶37It may be urged that the consideration of the question is not necessary, because that the execution of this note by the appellees to Clay, was the compromise of a doubtful right — a pending claim against them not adjudicated or uncertain as to its validity. I will yield for the present the point of compromise, and suppose that the appellees settled no part of the controversy by giving this note, with others of the same date, and concede to them for the sake of argument, the same attitude which they occupied previous to its execution, and grant-that if they were not liable before, the execution of this note did not make them so, and lay.the stress of the question now, on their then existing liability.
¶38Prentiss disappeared thre'e months before the note fell due, having previously covered all his estate by conveyances. His estate was immediately seized and disposed of, and his person remained in-*652Eibcessible to the process of law, uncle? Olfcumstan-ces not inducing a belief that be would ever return. Was it necessary that Clay should resort to extraordinary process to secure his debt, or .that he should issue ordinary process at all, and procure by a return thereof, that Prentiss was not in the State? I conceive not. I have said this point is; riot expressly decided, and such is the fact, but if we pur'siíé tiré diíFtírent cases which have been decided, we will discover that the law on this point has been more than intimated,- and that some of the cases embrace it in principle.
¶39The case of Smallwood vs. Woods, 1 Bibb, 542, was a leading case in settling the doctrine, that due diligence by suit was necessary, and has been adhered to in subsequent cases. But even that case' admits that, the rule is only general arid not universal, and enumerates somé cases which may form proper exceptions, among which absence from the State is one. The case of Sprat vs. M’Kinney. decided afterwards, 1 Bibb 596, impliedly admits that an averment that the obligor was out of the State, would have excused the bringing óf á suit. In the case of Young vs. Cosby, 3 Bibb 227, the necessity of suit is brought within reasonable limits, by stating that the assignor was riot required tó use greater diligence than a man of ordinary prudence would use in a case where he was solely and exclusively interested, and I may add, such as it might be presumed, Ire would use considering the situation and circumstances of the obligee, at the time of the assignment. For instance, if the obligor had been known to have fled from the State at the date of the assignment, it might be presumed, as in contemplation of the parties, that the assignee undertook, either to pursue him whither he had gone, or to take extraordinary measures to subject his estate here, if buy he had, as held by this court in the case of Brinwell vs. Perry, 5 Litt. 104. But if he resided lire at tire date of the assignment, possessing visible estate, and should afterwards dispose of that estate, and depart from the Commonwealth, before the note became due, it cannot be presumed that the assignee undertook to follow him, or to search for *653him here by process, or to resort to attachments to seize property now belonging to others, which might- subject him, not only to costs, but damages, before he could have his recourse on the assignor. In the case Stapp vs. Bacon’s executor, 1 Marsh. 538; it is said that an averment in a declaration that the obligor was out of the State, ought to be held sufficient to excuse the bringing ol a suit, and the law would not compel the assignee to perform the vain and nugatory act of commencing a suit against a man whose person could not be reached by process. In the case of Clair vs. Barr, 2 Marsh. 256, it is held that where the assignor was dead and died insolvent, both his death and insolvency might be averred and proved by parol, without the introduction of any record,- Of a suit commenced to prove him either dead or insolvent. In the case of Oldham vs. Bergan, 5 Litt. 134, it is held that a temporary absence of the debtor, when the note became due, was sufficient, when shown by parol proof, to excuse a failure to commence a suit, and procure the return of a writ to the first term, to prove the debtors absence, and that he was not bound to resort to the extraordinary process of the law, to subject his estate when absent, and this on the ground, that at the time of the assignment, from the relative situation of the parties, it could not have been contemplated that such extraordinary proceedings should be resorted to before recourse could be had against the assignor.
¶40*653These cases warrant me in concluding the law to be, that if the debtor, at the time of the.assignment, is a known resident of the State, and apparently in prosperous circumstances, it could not have entered into the contemplation of the parties, if he should, before the note became due, sell off and dispose of every thing, and flee from the country, as it were to escape process, that the assignee should still issue a writ to prove that he was out of the country, when his flight was notorious, or be bound to issue attachments and seize an estate, which was upon the records of the country conveyed to others to secure debts of immense magnitude. Writs returned “no inhabitant of the county,” could not be. as good evi-*654Vence that he had absconded from the State, as the parol testimony of individuals, nor could attachments seizing effects conveyed to others by mortgages, prove that these effects were liable, and that those secured by these mortgages, were not due. If, therefore; wé concede to the appellees the unrestrained right of bringing the appellant back to the original question of liability existing against them, on their assignment of the first note of Prentiss, the appellee by them, at the timé when this note was executed, it does appear that they were then liable to a suit on their assignment, without any further act on the part of Clay to make them so, and that the suit which he had brought against Prentiss, then pending, was an act of supererogation, to which he need not have resorted. No person seems to have doubted the circumstances, or residence of Prentiss when the first note was assigned, and it cannot be presumed that Clay was to run the risque of the great change which had taken place when the note became clue. It Was to guard against such changes that they endorsed the note, if all things had remained as ordinary, then Clay could not have reached them without suit. As it really turned out; he was entitled to do so.
¶41*654But I am still unwilling to concede that the evidence conduced to establish the issue, even if it be granted that Clay was bound to sue Prentiss after he had fled. Whether lie was or was not bound to sue Prentiss before he sued the appellees, was a doubtful and unsettled question, and the present division of the court, after mature deliberation, proves it to be so. Was it not competent for the appellees and Clay to settle that doubtful mattef themselves? It certainly was, and if so, how could they settle it? I know of no way they could have taken to have done it, preferable to the one which they have taken; that is, by giving their notes directly for the amount with surety, and exacting at the same moment from Clay, the easement to themselves of installing the debt, and procuring a liberal time to discharge it. The very meaning of the transaction seems to carry with it a design to settle the previous controversy,'and such must have been *655the intention. We have seen that the first note for part of which the note now in contest was given, was valid, and that there was no evidence conducing to impeach its consideration, and on this point there is no disagreement. This note had become due; Prentiss had fled, after first disposing of his estate. Clay had neglected to sue him to the first term, because he was not accessible by process, and could reasonably, or plausibly at least, contend he was not bound to do. The endorsers on the contrary might insist that he was bound to have issued his writ, and that having failed to do so, he had released them. This was the point of doubt and dispute. They propose to pay the debt and acknowledge themselves wrong and Clay right in this contest, if Clay will divide the debt into instalments and extend the time; and Clay acceeds to the proposal, and as evidence of this conclusion and adjustment, new notes were given; the old is to be sun rendered, and the suit brought is to be dismissed. In thus closing the transaction, it is not pretended either party were ignorant of their respective rights or that there was any fraud by either. All acted with their eyes open. Can it be possible that all this is to go for nothing, and that after the appellees have enjoyed the protracted time, and the division of the debt into a smaller burden at a time, they can bring Clay back to the very point at which he was before this note was executed; and that his ground now is equally as dangerous as it was before and theirs as safe? This is precisely what their present defence attempts to do. It was competent for them to become their own judges and settle this matter instead of bringing it before the tribunals of the country, and they could not do so more firmly, unless they had given to Clay a judgment. But this arrangement, closed by their solemn act and deed, if they are right in their defence, proves nothing, and does nothing but changes the form of action.
¶42There are acts which ought and frequently do es-top parties from travelling back to unravel old transactions and bring up an ancient defence, and the acts of the appellees are of that nature. I can*656not admit that the case of Rallston vs. Sebastian alK^ Bullitt, although it admits the parties to go back and unravel a settlement based on a mistake, ought to be extended so far as to permit a retracing of steps, where there is neither fraud or mistake. If that case can be so construed as to destroy all notes given in settling doubtful controversies, unless the older of the note had the right side of doubt at the time the note was given, I shall then beg liberty to dispute its authority as a solitary case, opposed to the uniform decisions of the law.
¶43Decision of the Court.
¶44But as the court is divided in opin« ion as to the extent the court ought to have gone m excluding the evidence from the jury, one judge being of opinion, without deciding on its weight, that although the evidence proved nothing conducing to show that the first note was invalid or founded on an invalid consideration, yet that it conduced to show that the endorsers were released before they executed the last note, through the laches of Clay; and the other judge conceiving that it did not conduce to prove a failure of consideration in either note, even if the proof did not vary from the plea, no mandate can go to exclude the evidence as insufficient or irrelevant.
¶45But there is an entire concurrence in opinion that the evidence did not tend to show a failure of consideration of the first note, and that the instruction gjVen by the court to the jury, tended to leave the .impression on the jury that the evidence did conduce to show a failure of consideration in the first note as a foundation for a failure in the considera-of the second, and that for this cause the judg* ment is erroneous and must be reversed with costs, and the verdict be set aside, and the cause be re* mantled for new proceedings, not inconsistent with this opinion.
¶46delivered his own opinion.
¶47I concur in reversing the judgment which was rendered by the circuit court in this case. But as the opinion just delivered has not, in *657every point, my assent, and as the cause must go back to the circuit court for further proceedings, it is due to the case that I should give my views on the points of difference. This I shall proceed to do.
¶48The action was brought by Clay, the appellant, against the appellees, on a note for $2,240, dated October 28th, 1818, and payable two years thereafter. The trial was had in the circuit court on an issue made up to a plea denying that the note was given upon any good or valuable consideration. Át the trial, instructions to the jury were given by the court, and others were refused. Exceptions were taken in each case to the opinion of the court, and the evidence made part of the record.
¶49With respect to the instructions which were given, I concur in the view taken of them by Judge Mills, and shall, therefore, leave that branch of the case without adding any remarks to those made by him. But my understanding of the law involved in the refusal of the court to give other instructions, is somewhat different from that of his, and it is to that branch of the case I design to direct the remarks that I shall make.
¶50After the evidence on the part of the appellees was heard by the jury, the court was moved by the appellant, but the motion was overruled, to instruct the jury that the whole evidence given on behalf of the appellees, was incompetent and insufficient to prove or support their plea. Judge Mills thinks this instruction should have been given to the jury, and that the court consequently erred in overruling the appellants motion. I think differently.
¶51In presenting my views on this point of differ-enc-e, I shall not enter upon a particular examination of all the evidence introduced by the appellees and upon which the motion of the appellant was predicated. The issue made up by the parties is pf a mixed nature, involving both matter of law and fact, and my object will be to show that assuming the facts to be true, which the evidence in some degree conduces to proye, that in point of law tljere *658is no sufficient consideration to uphold the note, upon which the action is founded. Í assume the facts, because it is the peculiar office of the jury, and not the court, to weigh the evidence and decide the facts involved in an issue. Whether or not particular facts when proved, satisfy the allegations in the pleadings, is no doubt a question of law proper to be decided by the court, but the facts should always be first ascertained by the jury, or expressly or impliedly admitted by the parties, before the question of law is acted on by the court. Thus it is, for example, the jury may find the facts specially in their verdict, or after the party on whom the burthen of proving the issue is cast, has introduced his evidence, the adverse party, by admitting the facts which the evidence conduces to prove, may demur to the evidence, and after the facts are found by the jury, in their special verdict, or after the facts are admitted by the demurrer to evidence, the sufficieney of those facts in point of law to satisfy the allegations, will be a question of law for the consideration and judgment of the court. In neither case, however, does the court undertake to decide the facts involved in the issue, nor could it do so without invading the province of the jury. In the one case the facts found by the jury, in their special verdict, are taken as true, and in the other case every fact which the evidence conduces to prove, is assumed to be admitted, and in neither case does the .court do more than decide upon the sufficiency of the facts found by the jury or admitted by the parties to support the allegations of the pleadings. The same may be said of motions to instruct the jury. The party making the motion does not always expressly admit ■every fact which the evidence conduces to prove, but the motion partakes of the nature of a demur-•j-erto evidence, and if the facts be not expressly admitted, the court would invade the province of the jury, were it to act otherwise than to assume as proved, every fact which there is any evidence conducing to prove.
¶52I shall, therefore, without attempting a particular discussion of the evidence, barely advert to some of the prominent facts which, according to my un~ *659Iíersianding, the evidence conduces, in some degree, to prove, and which, if sufficiently proved, conVince me that in point of law, there is no valid consideration for the note, and that the issue is maintained on the part of the appellees.
¶53In December, 1817, Green Clay, the appellant, was the owner of stock toa considerable amount in the bank of the Kentucky Insurance Company, and contracted for the sale thereof, with James Prentiss, at the price of six thousand five hundred dollars, for which Prentiss was to execute his note to Clay, endorsed by some of the appellees as sureties. Pren-tiss accordingly executed and delivered to the appellant the following endorsed note:
¶54Lexington, December 30, 1817.
¶55“Six months after date. I promise to pay John T. Mason, Jr. or order, six thousand five hundred dollars, negotiable and payable at the Bank of Kentucky, without defalcation, for value received.
¶56(Signed,) James Prentiss.”
¶57(Endorsed.) “For value received I assign the within note to Sebree and Johnsons.
¶58(Signed,) John T. Mason, Jr.”
¶59“We assign the within to Green Clay.
¶60(Signed,) Sebree and Johnsons.”
¶61At the date of this note, Prentiss resided with his family in Lexington, and was greatly embarrassed in his circumstances, and some two or three months before the note became payable, he conveyed, in trust for his creditors, the most of the estate which he had in possession, and precipitately left the State, leaving behind him his family. The .circumstances with which he left the country, induced some to think that he would never return,. but others thought that he would again come back to his family. His family also broke up house-keeping, and. took boarding in Lexington.
¶62On the 25th of September, 1818, Clay caused an action to be commenced on the note in the Fayette court against Prentiss. The capeas which was dat-®d on that day, was made returnable to the Novena-*660lifer term thereafter, and was returned by the sheriff of Fayette, “no inhabitant.”
¶63But before the return day of this writ, the endorsers, supposing that they were liable under their endorsement, agreed with him through his counsel, to divide the debt .into three instalments, payable in one two and threé years, and to give their separate note for each, with additional security. Thé note which was given for one of the instalments is that upon which the present action is founded.
¶64From the preceding facts, if nothing conducing to a different conclusion was proved, the jury was undoubtedly at liberty to infer that the supposed liability of the endorsers of Prentiss’ note, and thé giving day by Clay for their making payment, was the only consideration for the note now in contest, as well as the other notes which were executed by the appellees, for the other two instalments. As such might have have been the inference of the jury from the facts, therefore, I shall assume for the present, that the note was given on no other consideration, and attempt to show that a consideration of that sort is not in point of law a valid one, provided the endorsers were neither legally ór morally bound for the debt of Prentiss at the time their notes were executed to Clay.
¶65Were we to exclude from this question of consideration, that artificial and technical influence which writings are calculated at times to have upon the mind, and treat the question simply as in-voling the sufficiency of the consideration upon common law principles, to uphold a parol promise, there would be no difference of opinion. Neither the forbearance to sue for, or the giving day to make payment of a demand not originally binding, can be of any benefit to the party promising, in consideration of the forbearance or the giving day for payment, or any prejudice to the party giving day or forbearing; and it is an inflexible rule of the common law, that to make a contract or agreement obligatory, the consideration must be either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made.
¶66*661’íhüs it is held if a promise be riiádé by an éxé-fcutor, or an heir at law, who has no assets in consideration of forbearance, to pay the debt pf the testator, that the promise is a nuchím pactüm-, ánd cannot be enforced. So, if an heir promise in consideration of the forbearance of a suit in chancery, to which he was not liable*
¶67So if the promise be in consideration of forbearance of a suit upon a contract made by a married woman, or in consideration of relinquishing an assumpsit which was void, or in consideration of a discharge froin a tortious arrest. See 1 Cum-, mins on contracts, 13 and 16, and the authorities there cited*
¶68From these cases it would, therefore, seem necessarily to follow, that if the endorsers of Prentiss’ note were not liable for that debt, the note in question, whether executed in consideration of day7 being given for the payment, or the forbearance to sue, or in consideration of relinquishing the claim against them, it has no sufficient consideration for its support, unless the circumstance of its being reduced to writing, gives it an operation in respect to the consideration which a parol promise has not at common law.
¶69The writing is riot hbwever admitted to affect the question, as to the sufficiency of the consideration. The note is not sealed, and though written, is a common law instrument, of no higher dignity than a parol promise, requiring the same consideration for its support.
¶70By an act of the legislature of this country, unsealed writings are now placed on the same footing with sealed ones, and it is known that at common law, the solemnity of the act was in itself a sufficient consideration to uphold a deed, and no other consideration was necessary to be proved. But before the passage of that act, by another act of the legislature of this country, the consideration of sealed writings was permitted to be gone into and impeached by special plea, in the same manner that Writings not sealed, might be at common law, so *662that now, according tro the repeated judicial coll-» structi on of those acts, no action can be maintained either upon a sealed or unsealed writing, containing stipulations for the payment of money, provided the defendant, by proper plea alleges, and by competent evidence proves, that there was ño sufficient consideration for the writing.
¶71As long ago as spring term, 1814, it was decided by this court, in the case of Ralston and Sébastain against the Bullitts, that under the act allowing the consideration of sealed writings to be gone into and impeached, it is sufficient for the defendant in his plea to deny that the bond upon which the action is founded, was given for a good or valuable consideration, without detailing the facts, 3 Bibb, 261. Since then the practice of the country, has in a great degree been brought to conform to that opinion, and many subsequent cases have been decided upon issues made up to such a plea, and upon the same idea, that a merely voluntary bond, or one having no good or valuable consideration, will not authorize a recovery upon it. In that case another principle was also decided, directly in point, on the question of consideration, and in perfect accordance with the cases to which reference has been made. The principle is this, that a bond given by an endorser of a bill for the amount, after be is discharged of his liability, may be avoided by plea impeaching the consideration.
¶72My remarks thus far have been predicated upon the supposition, that at the time the note in contest was executed, the endorsers of Prentiss’ note were discharged from liability, and it is Upon that hypothesis only, that the cases to which I have referred are understood to have any application. But is it true, that those endorsers were discharged? Or were they, notwithstanding the time the note of Prentiss which was endorsed by them, was permitted by Clay to sleep after it became payable, before-suit was commenced by him, still under either a moral or legal obligation to Clay for the demand? These are questions involving principles not under-, stood to he hitherto finally settled, and which aret *663.admitted not to be entirely free from difficulty. But after exploring the cases which have been decided, and which seem to have any application to the principles involved, I have been unable to bring my mind to any other conclusion upon the facts which the evidence conduces to prove, and which I consider myself bound in the consideration of the question to assume as proved, than that in point of law, the endorsers of Prentiss’ note were not, at •the time of giving their note to Clay, either legally or morally bound for the debt of Prentiss.
¶73I cast from this branch of the case all influence ■in respect to the attempt made by the appellees to impeach the consideration of the note which was given by Prentiss and endorsed by some of them. The instructions which were^given by the court to the jury, relate directly to that attempt, and I have said that the view taken of that branch of the case by Judge Mills, accords with my own. I go upon the supposition that the note of Prentiss, which was endorsed by part of the appellees, was found.ed on a valuable consideration, and that when delivered to Clay, it was binding on Prentiss, and that as endorsers those by whom it was endorsed, were also in their character of endorsers, liable as other endorsers of bonds for the payment of money, and. not further.
¶74By the contract with Clay, security for the purchase of the stock was to be given by Prentiss, but the nature and extent of that security was a subject of arrangement with them, and as the security .agreed on was endorsers of his note to Clay, there is no pretext for saying that after the note was endorsed, those by whom the endorsements were made, took npon themselves other, or greater liability than any other endorser of like instruments .of writing.
¶75I also go upon the idea, that after the note with its endorsements were given to Clay, and after it became payable, there was not, from the facts assumed, and which the evidence conduced to prove, that diligence used by Clay, in prosecuting suit against Prentiss, as to hold the endorsers Hable on *664tbeir endorsements. It has long since been held, and it would be a useless waste of time in me to attempt to prove its correctness, that an endorsement implies an undertaking by the endorser, that he will be accountable, provided that by due and proper diligence the endorser is unable to make the debt assigned out of the obligor. It has siso been repeatedly decided, that as a general rule, the diligence to be used by the endorser, is that of a suit commenced in apt time and duly pursued by the vigilant use of all legal means, to final and ultimate process. To be in apt time, it has also been decided, that the suit should be brought to the first court after the assigned debt becomes payable, unless there should not be sufficient time between the time of payment and the next court, to admit of judgment at that time. Tested by these rules, the suit which was brought by Clay against Prentiss, was not commeneced in due and apt time. The writ did not issue to the first term of Fayette court, after the note became payable, though there was sufficient time after the time of payment and the first court, to have authorzed judgment at that time, if the writ had been sued put and served upon Prentiss.
¶76But here I a;n met with an objection. It is said that Prentiss had before the note became payable left the State, and had not returned until after the first court after the note became payable, and hence it is contended, that although the rule with respect to diligence be as is stated in the general, yet like most other general rules, it has exceptions, and the absence of the obligor from the State is one. I admit that the rule to which I have adverted, is not without exceptions, but I deny that the temporary absence of the debtor from the State, forms an exception.
¶77If at the time a note is endorsed, the debtor resides in the State, and before it becomes payable, he removes from the State, T admit that there may be recourse against the endorser, without suit against the debtor. In such a case there would be no court in this country, possessing cognizance of the matter,- *665and it would be absurd and idle to require the as-signee to sue out a writ in a court possessing no jurisdiction of the case, before he would pursue the endorser. If a writ was required to be sued out in one court not possessing jurisdiction, with the same propriety, might it be required in every other ? So that by once admitting the necessity of a suit in such a case, there would be no limit short of a suit in every court in the State.
¶78But not so, if there be no change of residence, no actual removal from the State, though there may be a departure from the State. Notwithstanding tiie debtor may be absent from his residence, he may be sued in the court of the county of his residence, the cause may progress, and such proceedings therein regularly had, as for judgment to be obtained against him, even should he not return. In such a case, therefore, there is no necessity for dispensing with the general rule on the subject of diligence, and permit recourse to be had against the endorser, without the prosecution of suit in due and apt time against the debtor. Were the temporary absence .of the debtor from the State at the time of the debt becoming payable, admitted .to be an exception to the general rule, what is there to prevent the case ,of absence from the county of the debtor’s residence, or his insolvency, from likewise being made .execeptions, the latter of which, has however, been decided not to be such, and the former has never been thought by any lawyer to be so. There must, I apprehend, not only be due diligence by suit, but to authorize a recovery of the assignor, the record of the suit must prove it to have been commenced before the first term after the debt assigned becomes payable, unless the court follows the time of payment so recently as to forbid the possibility of judgment at the first term if the writ was executed, or unless by the removal of the debtor from the State after the endorsement, there can be no suit in any court of the State possessing competent jurisdiction of the case, or from some uncon trola ble necessity, such as death of one of the parties, no suit could, have been brought within that time, ,
¶79If record evidence of due and proper diligence by suit be not necessary in every case where suit may be prosecuted, why was it held in the case of Smith against Blunt, 2 Marsh. 522, that a delay o£ a few months in suing out a capias ad satisfaciendum, after a judgment, discharged the endorser, though the-suit had been commenced in due and proper time, and though a fieri facias had also issued in apt time on the judgment, and that returned no property found by the sheriff, and although the defendant against whom the judgment was recovered, was proved to have been discharged under the act concerning insolvent debtors, from the execution of other creditors. In that case as jn others of libe nature, that have been decided in the same way, it might have been argued that to sue out a ca. sa. when there was no probability, from the insolvency of the debtor, of making the money, would be to accumulate cost without the prospect of benefit, and therefore unnecessary and ought not to be required, but the rule of law exacting due diligence by suit and the vigilant use of all process within the power of the party was too inflexible to yield to such arguments, and by the neglect in not suing out the ca. .so. a few months, the assignee lost his recourse against the endorser, So I apprehend, must be the fate of every assignor who neglects to sue the debtor against the first term, unless he brings his case in some of the exceptions already mentioned. I have been unable to find any case heretofore decided, which, according to my understanding of it, militates in the slightest degree against this conclusion.
¶80There are cases in which this court, in speaking of the general rule with respect to diligence by.suit, have, without its being necessary to the decision of the point before the court, admitted the rule to have exceptions, and in general terms have pointed out absence from the State by the debtor, as forming an exception. Such are the cases of Smallwood against Woods, 1 Bibb 542, and Spratt against M’Kinney, 1 Bibb 596. But it will be evident to anv one who may take the trouble of looking into those cases, that it was not intended by the court to decide that absence from the State alone, without an actual re-*667inoval, would take the ease out of the general rule, and allow a recovery against the assignor, without suit against the debtor. The case of, Oldham and Bergan is in accordance with the distinction I have taken. In that case the assigned note did not become payable sufficient time before a term of the court, to have admitted of a judgment at the first term, if the writ had been sued out and executed on the debtor immediately after the debt was payable, and hence it was correctly decided in that case, that the failure to sue before the first court, was no discharge of the assignor. The case of Brinker against Perry, 5 Litt. 194, though not expressly in point, bears a stronger analogy to the present. In that case the note was assigned after it became payable, and without alleging diligence against the maker of the note by suit, the plaintiff, as an excuse for not doing so, charged in his declaration, that the maker of the note had, when it became payable, left the State, and continued out of the State for many months, and was still out. In remarking on that case the court say: “It is unimportant whether the declaration be understood to allege the fact of Moody, the maker of the note, having removed from the State, or only absented himself on a temporary occasion. In either case the principle is the same, and in neither case can there be a recovery against the assignor without due diligence by suit against the maker of the note. Tf the absence was merely temporary there was nothing to prevent Brinker from suing the maker of the note, and if there was a permanent removal, as it is alleged to have taken place before the note was assigned, he must be understood to have undertaken to pursue the maker of the note by suit, in the country to which he had removed.” Now instead of being an authority against the distinction which I have taken to the case last cited, as far as it has any bearing, sustains what I take to be the correct rule of law. It assumes that where there is a temporary departure from the State by the maker of the noté, there is nothing to prevent his being sued in the courts of this country, and that, notwithstanding such a departure, due diligence by suit must be used *668against him to authorize recourse against the eu* dorser. Hence I conclude that if in point of fact ^ ¿eparture of Prentiss from the State was intended to be temporary, and not designed as a removal or change of his residence, that in failing to sue be; fore the first court of the Fayette circuit, Clay'lost his recourse against the endorsers.
¶81But I may be told that from the circumstances of p'is flight, combined with other facts, Prentiss’ intention to remove from the State might be inferred, and if there was in fact a removal, the liability of the endorsers remained until after the suit was brought by Clay, and until after the note upon which this action was brought was executed. 1 answer that from the continuance of Prentiss’ family in Lexington, and other circumstances, the jury were at liberty to infer that the flight of Prentiss was not intended as a change of his residence, and it is not for the court to decide upon the weight of conflicting evidence. It was proper, therefore, to overrule the appellant’s motion, and leave the facts with the jury for tlicir determination; if, as I think the evidence conduced, in some degree, to prove facts which, if they exist in truth, the issue on the part of the appellees was supported, though evidence may also have been introduced conducing to prove other facts, which if found by the jury, would defeat the defence of the appellees.
¶82Before I leave the case, one or two further remarks are due, to prevent any misconstruction on the Poil,t of consideration. In assuming the facts asto that point, I would not be understood as expressing an opinion on the weight and credit due to afl the evidence: to do so would, according to my Understanding, encroach on the office of the jury. Evidence conducing to prove a different consideration for the note in contest than that which I have assumed may also have been introduced and which, if found by the jury 10 be the true consideration, might uphold the note and authorize a recovery by the appellant. But between evidence conducing to prove contrary facts, it is not for the court but the jury to decide. If there.had been no evidence con*669ducing to prove any fact which, if true, will support the issue on the part of the appellees, I admit, as matter of law, the court should have given the instructions to the jury, but I have attempted to show that the evidence does, in some degree, conduce to prove títere was no valid consideration for the note, and although other evidence conducing to prove a valid consideration may have been introduced, I conceive it not to be within my province, between conflicting evidence, to decide upon its weight, and draw the inference of fact, which, by the triers of facts might be drawn from the whole evidence.