2 Ala. 397 | Ala. | 1841
— The principal question arising on this record, and argued at the bar, is, whether the defendants, who were separate endorsers, can be sued jointly. The affirmative of this proposition is maintained by the counsel for the plaintiffs in error, in virtue of a law of Georgia, by which the Western 3ank of Georgia, the plaintiff in this action, was incorporated.
The statute is averred in the declaration, as an excuse for the failure to make demand and give notice ; and as authority thus io sue; and was also given in evidence. That portion of it which is material to the present enquiry, is to the following effect, “ no notice or protest shall be necessary to' charge any maker, or endorser of any note, or obligation due said bank, and all makers or endorsers, or their representatives, may be embraced and sued in one action, and no proof of notice, demand, or protest, shall be necessary, or required on any trial, to authorize a recovery.”
The counsel for the bank insists, that every one who contracts with the Western Bank of Georgia, submits to be governed by' the laws, usages and customs of that Bank; and that by consequence, the defendants, although residing in Alabama, have contracted that their liability should depend on those laws, and usages, and not on the law of this State.
We do not think that any construction which could be put on the Georgia statute, can affect the question to be decided on this point, as it must depend on our own laws. The act however, does not contemplate, that all the indorsements on a note
The time within which suits shall be brought, and the mode in which they shall be instituted, relates to the remedy, and does not affect the obligation of a contract. It is too obvious to require argument, that the power to sue one or more endorsers in the same action, can not affect the debt or duty to be enforced by the suit. If then these endorsements had been made in the State of Georgia, as the right to sue both endorsers in the same action, is no part of the obligation of the contract, they cannot both be embraced in the same action in this State. The citizens of other States who sue .in our Court, must be governed by the rules we have adopted for the government of our own citizens. It has never been supposed, that the forms by which a contract would be enforced in the county in which it is made; follow it in another county, in which it may be sought to be enforced. The utmost that could be expected, would be that such tribunal would give effect to the contract, according to the law of the place, where it was to have been performed, unless it violates some law oí the lex fori, or comes in conflict with the established policy oí the country.
It follows that if the endorsements were made in the State of Georgia, when the endorsers are sued in this State, they must be sued separately, unless the indorsements were joint in point of fact, which is not the case here; and therefore the demurrer to the fourth and fifth counts should have been sustained.
The Court also erred in the charge to the jury, that it was not material whether the endorsements were made in Georgia or Alabama, if the note was payable to the Western Bank of Georgia, and purchased by the bank; that in either case, the endorser would be liable, without protest, demand, or notice. Every endorsement of a note or bill, is a separate and inde-pendant contract; the liabilities growing out of which, are to
The charge therefore, as it assumed, that if the endorsements were made in this State, that the endorsers were liable without proof of demand of the maker, and notice of the dishonor' of the note to the endorsers was erroneous.
The questions considered, being decisive of this case, we-have not thought it necessary to examine the other questions-raised on the record, and commente d on at the bar. ■ Let the judgment be reversed.
