Kain v. Walke

ORMOND, J. The case of Bates v. Ryland, 6 Ala. 675, is a conclusive authority, that the death and insolvency of the maker of a note, is a sufficient excuse for the failure to' prosecute a suit against him, to a return of “no property found” by the sheriff. This is the excuse offered, for the omission in those counts of the declaration to which the demurrer was sustained, for the failure to alledge, that the statute condition had been performed. The court should not therefore have sustained the demurrer for this cause, and no other has been brought to our notice, or been observed by us, which would justify it. [See also Clair v. Barr, 2 Bibb, 255.] The act defining the liability of indorsers, gives this right to the assignee, “ provided suit be brought to the first court of the county where the maker resides, to which suit can be brought, and if he shall fail to sue the maker to the first court, as herein provided for, the indorsee shall be discharged from liability, unless suit shall be delayed by his consent.” The right of the assignee, to recover of the assignor, is made to depend upon the bringing of a suit against the maker, to the first court, and in our judgment this condition of the statute is complied with, when a suit is instituted against the maker, upon the note, and a judgment obtained, upon which an execution could issue against him. The objection in this case, is understood to be, that the suit against the maker was not brought in the name of the assignee, but in that of the payee for his use. This mode of bringing the suit, might be necessary in the case of an irregular indorsement, and is not in our opinion a matter, which the assignor can object to. If a suit is in fact brought against the maker to the first court, and an execution returned no property found ; or if a valid excuse is offered for the omission to produce the statutory evidence, afforded by the return of the sheriff, the statute is complied with. We think therefore, the allegation, that the plaintiff commenced a suit against the maker, is proved by the [187] production of the record, of a suit commenced in the name of the payee, for the use of the plaintiff. What would be the effect upon the rights of the assignee, where a judgment so obtained, was reversed by the maker, we need not consider, as the judgment offered in evidence in this case is still in force. Let the judgment be reversed, and the cause remanded.