| Tex. | Jul 1, 1870
By the amendment of the 6th section of the act of March 20th, 1848, prescribing the mode of fixing the liability of drawers and indorsers of bills of exchange and promissory notes, enacted on the 11th day of January, 1862, all holders of such hills and notes were placed upon the same-footing, as to legal remedies, whether such instruments originated in contracts between merchant and merchant, their factors or agents or not. The same method of fixing the liability of the parties to such instruments are alike open to all, and the act of the 11th of January, 1862, was, no doubt, intended-to relieve other holders than merchants from the difficulty of fixing such liability, in consequence of the general suspension of the collection of debts through the action of the courts. To construe Art. 223, Pas. Dig., as an inhibition to sue any but a single or the immediate assignor or endorser, renders it wholly incompatible with Art. 229, a statute of subsequent date. And if so, the rule of construction would be to give effect to the last expression of the legislative will. But it is apparent that Art. 223 was intended to operate only upon non-negotiable instruments, and that the word “ sections,” in the article, is a misprint for “ section,” referring directly to the preceding section in the same act for its proper interpretation; and thus rendering it consistent and harmonious with the act of the 20th of March, 1848, in Art. 229.
Upon the giving of the bond for costs required by the statute, when a party files his petition for the writ of error, it issues as a matter of right; and, upon the assignment of errors, this court is hound to notice them, whether they be matters of law
Since the amendment of the 6th section of the act of the 20th of March, 1848, all holders of such instruments have their option of two methods of fixing the liability of drawers and indorsers upon notes and bills which mature subsequent to the 11th January, 1862; notarial protest and notice for non-payment or suit as prescribed in Art. 229.
The note sued on in this case, falling due on the 1st of January, 1862, ten days before the passage of this amendatory act, the holder could only exercise due diligence by suit. The indorsements were in blank, and must be intended to have been made at the time of the execution of the note. The courts were open by the proclamation of the provisional governor for the institution of suits in September, 1865, and suit was not instituted until the 8th of October, 1866. Mo cause is alleged in the petition why suit was not brought to the first term of the court at which it could have been brought, which showing was indispensible to fix any legal liability at all upon the indorsers. The judgment of the court, therefore, upon the question of due diligence was an error of law patent upon the record, for the indorsers stood clearly absolved from all liability upon the note by operation of law.
The judgment is therefore reversed as to J. B. Brooks and J. B. Carlton, the indorsers, and the cause dismissed as to them.
Beversed and dismissed.