33 Tex. 12 | Tex. | 1870
A question of'some novelty in this 'State is raised in this record.
A suit was brought by the indorsee of a promissory note against the maker and indorser; service of process was had against each in due time; and no answer being made by either, judgment by default was taken against both. The damages being liquidated, the assessment was made by the clerk, and the final judgment entered. Afterwards, in due time, the indorser filed his petition for a writ of error, and the required bond for costs being executed, the case was brought up by him for revision.
The only assignment of error is, that the judgment was wrong, because more than two terms of the court had elapsed, after endorsement, before the institution of the suit. The note bore date Bebrury 17, 1860, and was payable one day after date. The suit was instituted March 18, 1861. The indorsement was in blank, and no direct and specific averment made in the petition of the time of the indorsement. It seems, therefore, to be insisted that,nothing else appearing, the legal presumption is, that the indorsement was made at the time of the execution and delivery, of the ■note; and if so, legal diligence was not used to fix the liability of the indorser.
Bor some purposes and in some attitudes of partiés litigant the presumption does arise, that an indorsement in blank was made
Affirmed.