31 Tex. 693 | Tex. | 1869
—The legislature of 1840 passed an act repealing all laws in force prior to 1st September, 1836,
The two principal acts on the subject of bills of exchange and promissory notes are the acts of 1840 and 1848. (Paschal’s Dig., Arts. 220, 226, 229, 235.)
The 1st section of the act of 1840 contained certain provisions that are repealed by the 7th section of the act of 1848, (Art. 235,) and which are not re-enacted, and of course not in force since the repeal.
The repealed section is as follows:
“It shall not be necessary for the owner or holder of a bill of exchange, promissory note, check, draft, or other mercantile negotiable instrument, to have any of those instruments protested for non-acceptance or non
The act of 1848 was entitled “An act prescribing the mode of establishing the liabilities of drawers and indorsers of bills of exchange and promissory notes,” "and, as has already been said, with some alterations, which will be noticed, contains the law that now governs us.
The 1st section (Paschal’s Dig., Art. 229) is as follows:
“ Tile holder of any bill of exchange or promissory note, assignable or negotiable by law, may secure and fix the liabilities of any drawer or indorser of such bill of exchange, and every indorser of such promissory note, without protest or notice, by instituting suit against the acceptor of such bill of exchange, or against the maker of such promissory note, before the first term of the district court to which suit can be br,ought after the right of action shall accrue, or by instituting suit before the second term of said court after the right of action shall accrue, and showing good cause why suit was not instituted before the first term next after the right of action accrued.”
The 6th section of the act extended the provisions of the 4th section to contracts between merchant and merchant, their factors and agents, only.
On comparing the 1st section of the act of 1840 (repealed by the 7th section of the act of 1848) with the 1st and 4th sections of [the act of] 1848 on the same subject, it will be seen that the act of 1840 expressly provided, that “ every such party (indorser) shall, without any protest or notice whatever, be held responsible, as security, for the final payment of every such instrument;” while the act of 1848 does not admit that the indorser is security, hut provides the two methods, in which the “holder may secure and fix the liabilities of the indorser,” and virtually providing that, unless the liabilities of the indorser are “ secured and fixed,” as provided, he is released. To say that the indorser is liable, unless “ fixed,” as provided, would be equivalent to denying that the 1st section of the act of 1840 was repealed.
This act of 1848 continued uninterrupted till the 7th December, 1861, when an act was passed suspending the collection of debts and liabilities on bills of exchange and promissory notes till 1st January, 1864, or six months after the close of the war. (Paschal’s Dig., Art. 5125.)
One of the consequences of the passage of this act was the prohibition of holders of promissory notes, which were not made by merchant to merchant, to fix an indorser, and
The appellee insists that, because the note fell due on the 1st January, 1862, and at a time when the laws then in force did not authorize the holder of a note to fix the liability of an indorser in any way, therefore the indorser was liable to pay the note. This would be plausible if the act of 1840, making the indorser responsible as security, had not been repealed, as hereinbefore stated. And, besides, if the holder had used due diligence in having the note protested as soon as he was able, he could have fixed the liability of the indorser. The maxim that the law favors the vigilant properly applies in this case.
We cannot see that this case differs in any material point from Smith v. Harbert, [30 Tex., 670,] decided at the last term of this court. Wherefore the judgment is
Reversed and remanded.