10th May, 1806.

delivered the unanimous opinion of the court, that in this case the plaintiff had not used due diligence to receive the money due on Sanders’ bond, and, therefore, from the evidence produced at the trial, was not entitled to the verdict, which the jury had rendered in his favor. It appears, manifestly, that the plaintiff did not avail himself of all the legal means in his power, and make a seasonable and proper use of them, in order to obtain payment of the bond, In particular, he omitted to sue out a ca. sa. Although this may not be necessary in every case, yet it must be regarded as necessary in every case, where, by possibility, it might prove effectual, or answer the purpose ; and it might have done so here, for any thing that appears to the contrary.

Motion granted.