29 Ala. 412 | Ala. | 1856
If the endorser waive suit upon the endorsed note to the first court, although the waiver may be by parol agreement, the statutory obligation on the endorsee is not revived, after the first court. In order to make the endorser prima facie liable on his endorsement, it is only-necessary to prosecute to insolvency at some time after the expiration of the period of the stipulated delay. The .law is thus laid down, on the authority of the cases of Bates v. Ryland, 6 Ala. 614, and Litchfield v. Allen & Falconer, 1 Ala. 119, and is conclusive of this case in favor of the appellee.
The fact that the endorser was induced to waive suit to the first court, because it was apprehended there was not time after the endorsement to bring suit to the next succeeding coux-t in 'the county of the maker’s residence, does not authorize us to presume a contract between the parties to make the endorser’s liability dependent upon the fact'that suit was brought to the second court after the endorsement.
The endorsement in this case was made, and two terms of the circuit court of the county of the maker’s residence had passed, before the Code became the law; and consequently, the effect of the contract of endorsement must be governed by the pre-existing statutes. Those statutes have been construed by this court in the cases cited, and we have followed the construction adopted in those cases. The law is somewhat changed by the Code; and we do not intend to be understood as deciding that the law as above laid down would govern a case to which the Code applied. — Clay’s Digest, 383, §§ 12-15; Code, §§§ 1543, 1544, 1545.
The judgment of the court below is affirmed.
