Kies, appellee, against N. Tifft and S. Tifft, appellants. Error from Cayuga Common Pleas

Kies, appellee, against N. Tifft and S. Tifft, appellants. Error from Cayuga Common Pleas. A promise, a contract, due ^theremT when collect-course^of law* is^ broken, suffers °a term the^mon^ls due, without tberefor^And áis, especially directed by the promissee to proceed m the collection. Assumpsit, by Kies against N. S. Tifft, upon the fol-. lowing written instrument: “tor value received, we prom*se Pa7 JUpheus Kies, or bearer, fifty-five dollars and sixty-six cents, by the first day of February next, with interest, “ The condition of the above obligation is such, that if the assignment of a certain bond and mortgage, this day assigned over, by Alpheus Kies, against Edmund Lewis, to Nat^ian Tifft, shall be collected, by the time set forth in said mortgage, then the above note to be payable, at the time set forth in the said note: if not, said note is not payable until the money is collected, by due course of law, taken on said Mentz, Feb. 20,1819. Nathan Tifft. 7 Stanton Tifft. Attest, George W. Kies.” The process was returnable in the Justice’s Court, the 8th August, and the cause tried there, August 14th, 1820, and judgment rendered for the plaintiff, Kies. The defendants appealed, and the appeal, was tried January 18th, 1821. G. W. Kies, the subscribing witness, testified to the execution of the above instrument, and that the money was payable, on the bond and mortgage, by two instalments—one at May 1, 1819; the other at Feb. 1, 1820. That, in June, 1819, he learned, from the defendants, that they had made arrangements with Lewis, the mortgagor, for part payment, aiid had received some notes, in part payment. He, at the same time, in behalf of and by direction of the plaintiff, requested the defendants to proceed and collect the balance. Here the plaintiff rested. The defendants moved for a nonsuit. 1. Because no breach ofthe agreement was shewn. 2. There was no liability on the defendants, till the whole of the money was collected on the mortgage. 3. A neglect to prosecute, from the 1st February, 1820, till the 8th August, thereafter,-when this suit was commenced, was not such a breach of the agreement, as to enable the plaintiff to recover. And the Court held the objections well taken, and nonsuited the plaintiff. W. Wood, for the plaintiff in error. H. Rathbone, contra. [MAJORITY — Curia.] Curia. In our opinion, the Common Pleas erred. The defendants were hound to usé due diligence in collecting the money on the bond and mortgage, particularly as they were so directed by the plaintiff. They ought not to have suffered a term to pass, after the money fell due, without a prosecution. (Moakly v. Riggs, 19 John. 69.) Judgment reversed.