Rathbone v. Bradford

1 Ala. 312 | Ala. | 1840

COLLIER, C. J.

— 1. By the act of 1828, defining the liability of endorsers, as explained by the act of 1829, it is provided, that where a note, bond, &c. is endorsed, suit shall be brought to the first court of the county where the maker resides, to which the writ can properly be made returnable, and if the endorsee shall fail to sue the maker to such court, the endorser shall be discharged from liability, unless suit is delayed by his consent. Here is an express and positive legislative enactment, imposing upon an endorsee a duty, which is dispensed with, only in the event the endorser will consent to its omission. It is then obvious, that the absence of the plaintiff from the State,' constitutes no excuse for the neglect to sue; and there is no reason why it should be so considered, since he might have appointed an agent to attend to his interest during his absence,- who could have put the note in suit, to the proper court.

2. In the administrators of Weatherford v. Weatherford, (8 Porter’s Rep. 171,) this court says, that “ a statute, according to the settled rule in the courts of the United States, and of the States of the Union, where’no time is fixed for the commencement of its operation, takes effect from its passage.” (See also 1 Kent’s Com. 426, and cases there cited.) The operation of the act of December, 1836’, is not postponed to any future day, and it consequently took effect as a law immediately on its passage.

3. It is competent for the legislature to ehange, at pleasure, the time when the courts shall be holden, and thus expedite or delay the remedies which it affords for the enforcement of rights ;• hence the law does not suppose parties to stipulate in reference to the remedy. Were it otherwise, the legislature would be prevented from making many salutary changes which experience would suggest, though individual rights were not at all affected.

The contract of the endorsee as implied by the law, is tha-t he will sue ¿he maker to the first term of the court, after the maturity of the note, to which the writ can be made returnable, — not to the court, which, according to the arrangement existing at the time of the endorsement, but to the court according to the organization when the note matures, to which process can first be returned.

The acts of 1828 and ’9 are imperative and leave no discretion to the court. They imposed upon the plaintiff the necessity of suing, the maker to the first court, if he would charge the endorsers. The act of 1836, required the county court to be holden for Talladega, on the third Monday in January, 1837. To that court process should have been sued out against the maker of the note, and not being dispensed with by the defendant, the plaintiff cannot recover.

The judgment of the circuit court is, therefore, affirmed.