6 Port. 420 | Ala. | 1838
The plaintiff in error, brought as-sumpsit in the Circuit court of Lowndes, against the defendant, as the indorser of a bond: In the declaration, it .was admitted, that no action had been prosecuted against the obligors, and by way of excuse, alleged that though diligent inquiry and. search was made for them, they could not be found, and their residence was unknown. The defendant pleaded non assumpsit, and three special pleas, on ah of which the plaintiff took issue, but which need not be particularly noticed, as-they present no question of law for our decision. On the trial, a bill of exceptions was sealed, from which it appears, that the obligors were men of wealth and punctuality, — that they resided in Pasquotank county, ííorth Carolina, of which plaintiff' was advised at the time he became the indorsee. And further, that they had never been in this State since that time. Upon these facts, the court charged the jury “ that before the plaintiff. could recover.of the indorser, it was necessary to prove, that he had either pursued the makers to insolvency, or that a demand and notice was necessary, and neither ap
It seems to have escaped the notice of the parties, that the excuse alleged in. the declaration for neglecting to collect the bond of the obligors, was not made out by proof, bat was most clearly disproved on the trial, but as it was not noticed at the argument, the view we shall take of the case,, relieves us from considering it here.
The only question we propose to examine, is the correctness of the instructions given by the. judge of the Circuit court to the .jury. In order to its determination, it is proper to examine the statutes in regard to the as-signability of contracts, such as that brought to our -> view in the present case. . By the act of eighteen hun-. dred and twelve, “ concerning the assignment of bonds, notes, &c. and for other purposes;” it is enacted, that all bonds, obligations, bills single, promissory notes, and all other writings for the payment of money or any other thing, may be assigned by endorsement, &c. The as-signee is authorised to maintain any action thereon, which the assignor might have maintained previous to assignment, and the obligor or maker is allowed all payments, sets off, or discounts made, had, or possessed against his bond, &c. previous tp notice of assignment, in the same manner as if the obligee or payee had prosecuted an action instead of the assignee. And the same remedy is given to an indorsee against the indorser or . indorsers of, such paper as is allowed by law, in cases of ihlan’d bills of exchange.
The act of eighteen hundred and twenty-eight, “defining the liability of indorsers, and for other purposes,” after reciting that'much injury has boon done to the-citizens of this State,-by moans of the uncertainty of the decisions of the courts in relation to the proper time at which indorsees of bills, notes, bonds, <fcc. shall make demand, of the makers or obligors of such paper, pro
Though the statute of eighteen hundred and twenty-eight does not expressly repeal all or any of the pre-ex-isting enactments upon the same subject, yet it operates as a repeal, by implication of- so much of the act of eighteen hundred and twelve, as prescribes the steps necessary to be taken by the holder of indorsed paper, in order to charge its indorsers. Instead'of making a demand of the 'maker or. obligor, and giving notice of nonpayment, “as in cases of inland bills of-exchange,” it requires that á recovery shall be sought of them by suit, prosecuted as soon as may be after the maturity of the ■ indorsed paper. If such suit shall prove unproductive, then the assignor may be proceeded against. The contract of the indorser is conditional, and is an undertaking to pay to the indorsee; upon thq performance of the conditions imposed by the statute. , ( .
The court alluded to, by the act, in which the suit is to be brought, is understood to be some court of competent authority, exercising jurisdiction within the State. Such was the decision of this court in Woodcock vs.
In regard to the second question, the court considered, that had the obligor remained within the State, it would have been necessary to sue him. before proceeding against the assignor; but as this had been rendered impracticable by his withdrawal, without any fault in the indor-see, the contract of indorsement had become absolute by the impossibility of performing the condition annexed, — of suing in one of our own courts.
Let it be premised, that there is no pretence that tire defendant practised a fraud upon the plaintiff, either in concealing truth, or suggesting falsehood; on the contrary, he advised him of the place of the obligors’ residence, .when he transferred to him their bond. The caséis, then, one of contract, unaffected 'by extraneous-circumstances. It has been seriously, questioned,- whether at common law, the mere indorsement of a note-
It will be apparent from a comparison of the statute of eighteen hundred and twenty-eight, with the statutes of Virginia and Kentucky, and the decisions of their courts upon them, that our Legislature must have had in view the law in regard to the assignment of bonds, &c. as it was understood in those States. Under this impression, it is certainly proper to draw aid from these sources of information, to lead us to a- correct conclusion. We then think it is- competent for the as-signee of a bond, &c. situated as the plaintiff, to sue his assignor, if he has used due diligence to obtain payment from the obligor, &c. and has failed. If the assignor was insolvent, so that a suit would be unavailing, its prosecution might be dispensed with; but without this or some other reasonable excuse, it could not be preter-rnitted with safety. What would be due diligence in
The present case is clearly distinguishable from that of Woodcock vs. Campbell. Here, (as has been already shewn) the plaintiff became the indorsee of paper, with the full knowledge that the obligors resided without the ¡State, and with distinct information of the place of their residence; so that the contract of the defendant could not have been made,, with a view to the diligence required of assignees, by the proviso of the second section of the act of eighteen hundred and twenty-eight. 'In the case cited, the obligor was living in the State at the time, of the assignment — the contract was clearly, made with a reference to our laws, and imposed upon the assignee the necessity of a suit against him. in order to charge his' 'assignor. But this condition became impossible to be performed by the removal of thó obli-gor beyond the limits of the State; an act to which the assignee had not contributed, and its performance being" placed beyond the power of the party on whom it was imposed without his default, the undertaking of the assignor was held to have become absolute.
In Smallwood vs. Woods,
The case of Cavanauh vs. Tatum,
We are therefore of opinion, that for the failure of the plaintiff to use diligence to collect the bond of the obli-gors, or to prove their insolvency, the charge of the Circuit judge to the jury was correct, so far as it held the necessity of a suit against them; and the alternative of the charge being immaterial under the evidence in the cause, the judgment must be affirmed.
2 Porter’s R. 456.
1 Penn. R. 20.
1 Wash. R. 219.
1 Penn. R. 158.
1 Bibb’s, R. 542
1 Wash. R. 219.
6 Mon. 641.
1 Bibb’s R. 542.
2 Litt. R. 134-5.
4 Stew. & Por. R. 204.
5 Stew. & Por. R. 96..