Bristow v. Jones

| Ala. | Jan 15, 1840

GOLDTHWAITE, J.

— In the case of Ivy v. Sanderson, (6 Port., 420" court="Ala." date_filed="1838-01-15" href="https://app.midpage.ai/document/ivey-v-sanderson-6529308?utm_source=webapp" opinion_id="6529308">6 Porter, 420) we held that when the maker of a note was known to the endorsee, to reside without the limits of the State, when the endorsement was made, it was incumbent on him to use diligence to obtain the sum due from the maker, before he could sue the endorser. That case is decisive of this, unless we can presume, the plaintiffs were ignorant of Shering’s place of residence. We think no such presumption can be made as the deelaration admits he was a non-resident when the note was endorsed. We cannot perceive how this fact could be known to them and they remain ignorant of his true residence.

The case is not brought within the statute; nor do the averments of facts supposed to exist afford a sufficient excuse for proceeding against the endorser without some attempt to recover the sum due from the maker.

Let the judgment be affirmed.