Insall v. Robson

Wheeler, J. By the provision of the 6th Section of the “ Act to dispense with the necessity of protesting negotiable instruments,” &c., the assignor, or indorser, may be sued without the necessity of previously sueing the drawer or maker, when he is “ notoriously insolvent.” If the insolvency of the maker will dispense with the necessity of sueing him at all, in order to hold the indorser liable, it, of course, must dispense with the necessity of sueing him to the first Term of the Court. It is the sueing of the maker which fixes the liability of the indorser, under the statute ; and wdiere that is unnecessary, it cannot be necessary to sue the indorser himself to the first Term, in order to- fix his liability. The diligence prescribed by the statute, as a substitute for that required by the law merchant, is the sueing of the maker, not the indorser. (Hart. Dig. Art. 2520, 2528.) The statute does not require that the indorser shall be sued to the first Term of the Court. The fact of the maker's insolvency renders the indorser liable at once; and if his liability is fixed, so that he may be sued in the first instance, without sueing the maker, the omission to sue to the first Term is an indulgence to him, of which he cannot complain. He cannot object that he was not himself sued as soon as he might have been. Nor can he complain that the maker was unnecessarily joined in the suit. He will be entitled to the benefit of the judgment against the maker; if anything can be made of it. If not, the most that he can ask will be, that the suit against the maker be dismissed and the costs so needlessly occasioned be taxed to the plaintiff. [130] We are of opinion that the Court erred in sustaining the demtirrer and dismissing the case as to the defendants in error • and that the judgment be therefore reversed and the cause remanded. Reversed and remanded.