delivered the opinion of this court.

We are of opinion that the court below did not err in refusing to give the instruction of the defendant, as stated in the first bill of exceptions. The facts stated in the prayer, even if admitted or proved to the satisfaction of the jury, would not have entitled the defendant to claim a deduction from the plaintiffs’ claim, of the amount of the order offered in evidence.

We think that the court below erred in giving the instruction, which is to be found in the second exception. In that instruction, it is assumed that the Rail-road Company refused to pay or accept the order. The court also said the jury were *260the judges whether notice of such a refusal was given within a reasonable time to the defendant below.

In a case like this, (Crawford vs. Berry, 6 G. & J.) this court said: “ Active diligence is imposed upon the obligee in pursuing the obligor, for a recovery of the sum due on the bill assigned to him, so that nothing shall be lost by his laches; and the question is, whether he did use due diligence, which is a question for the decision of the court.”

Affirm first exception, and second exception reversed.

PROCEDENDO AWARDED.