| Ala. | Jan 15, 1846
The indorsement by the defendant, it is alledged, assigned to the plaintiff the entire interest in the bill single made by Miller. It was then a distinct and substantive contract, and like all others, which do not look to any particular place of performance, must be governed by the lex loci contractus. In the first count the indorsement is al
We cannot judicially know what are the laws of a sister State, but in the absence of all opposing proof, it must be presumed, that those members of the confederacy who trace back their existence to the same common origin with ourselves, acknowledge the English common law, so far as it is adapted to our circumstances, and the nature of our institutions. Now a bill single is not assignable by indorsement, so as to transfer the legal interest to the indorsee within the rules of the I'aw merchant; and acting upon the presumption we have stated, it must be inferred that such is still the law of Mississippi. The inquiry then arises, is the undertaking of the assignor direct, or does it impose upon the assignee the performance of any act as a condition upon which his liability depends ? We answer, that it is incumbent upon the assignee to show, by a suit prosecuted against the obligor, that the amount of the specialty could not be collected of him, or else excuse the prosecution of such suit by proof of the obligor’s insolvency.
The second count is clearly good, if Ivey v. Sanderson, 6 Porter’s Rep. 420, is a correct exposition of the law. In that case, a bill single was indorsed in this State, but the makers resided in North Carolina, at the time of the assignment, and still continued residents of that State. The court said, “We think it is competent for the assignee óf 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 obligor was insolvent, so that a suit would be unavailing, its prosecution would be dispensed with; but without this, or some other reasonable excuse, it could not be preteimitted with safety. What would be diligence in such case, would of course be a question to be determined by the jury, under the instructions of the court as to the law. But we consider it clear, upon authority, unless there was an effort to coerce payment from the obligor, «fee., or some satisfactory reason furnished for the neglect to make it, the assignor could not be charged.” This decision may perhaps be considered as covering both the counts in the case at bar, and to show that each of them discloses a good cause of ac
It is however argued for the defendant in error, that conceding the law to be as we have stated it, to authorize its application to the case before us, the declaration should have set.out the consideration for the assignment by the defendant. This it is insisted is essential to give to the assignee a right of action against the assignor in virtue of the common law, which determines the liability of the parties. The influence to which this argument would otherwise be entitled, we think is entirely taken away by the statute .which declares, whenever suit shall be commenced in any. of the courts, founded on any writing, whether t.he same be under seal or not,the-court before whom the same is depending, shall receive such writing as evidence of the debt or duty for which it was given; and the defendant shall only deny the execution of such writing, by plea supported by affidavit. [Clay’s Dig. 340, § 153.] This enactment has received a liberal interpretation, and has been held not only to apply to writings which in themselves evidence a liability, but to such as do not in terms express the contract of the parties but make the liability of the promissor to depend upon the performance of conditions which the law implies. 4 Porter’s Rep. 515, and several subsequent decisions. The act does not interfere with the rights of the parties, but merely prescribes á rule of evidence, which must be applied to all writings upon which suits are brought in our courts, no matter where made. Its provisions are the lex fori, and are applicable alike to written contracts, whether made in this State or ex territorium.
It follows from what has been said, that the demurrers to the declaration should not have been- sustained. The judgment of the Circuit Court is consequently reversed, and the cause remanded.