Alday v. Jamison, 3 Port. 112

Alday v. Jamison

3 Port. 112 | Ala. | 1836

Saffold, C. J.

The main question presented by this case is, whether the holder of a promissory note, to whom the same has been transferred by delivery, merely, from the indorsee, can, on the evidence of the note and indorsement alone, sustain an action against the indorser? Such is the case presented by this record. The declaration, or concise statement of the ground of action, as in oases of appeal from the judgment of a justice of the peace, discloses these facts.

It is deemed sufficient to say, that, in legal contemplation, there is no privity between these partiesi on the evidence of the paper alone, no cause of action, against the indorser, in the name of the holder, by verbal assignment. Could he recover, against the indorser, it could only be by instituting the suit in the name of the indorsee, for his use. The circumstance of the suit having originated before a justice, does not vary the principle, that it must be in the name of the proper parties.

It is true, as contended in argument, that the declaration is defective in other respects; in not stating *114the facts constituting the diligence used, to make the money out of the payor of the note, instead of the averment that the plaintiff had “used the legal means to try to collect out of the maker.” This is an inference or conclusion of law, which the party was not authorised to make; it was a matter necessary to be submitted to the Court, on an averment, of the facts relied upon to establish the requisite diligence.

On either, or both these points, the judgment must be reversed ;■ and as the former appears fatal to the action, it is supposed unnecessary to remand.