N. & H. Weed & Co. v. Brown

COLLIER, C. J. The act of 1828, defining the liability of indorsers, and the act amendatory thereof, enacts, that all contracts in writing, for the payment of money, or property, &c., shall be assignable, as previously they were: Further, that on all securities not subject to the rules of the law merchant, the assignee shall cause suit to be brought to the first court of the county where the maker resides, to which the writ can properly be made returnable ; “ and if he shall fail to sue the maker to the first court as herein provided for, the indorser shall be discharged from liability, unless suit shall be delayed by his consent. Again : “ When judgments shall be recovered in either the circuit or county courts, or before a justice of .the peace, by the assignee or indorsee of any assigned or indorsed bond, note, or other writing, and a writ of fieri facias shall be returned by the proper officer “no property found,” the said assignee or indorsee may commence his action against the assignor or indorser, on said assignment oi; indorsement, and the return on said fieri facias shall be sufficient evidence of the insolvency of the maker or obligor, to authorize a recovery against him, on his said -assignment or indorsement.” Clay’s Dig. 383, <§> 12 to 16. Where the security indorsed is not subject to the rules of [454] the law merchant, the obvious design of the statute was to simplify the remedy against indorsers, and to substitute for demand and notice, a speedy pursuit of the maker to judgment, and a return by the sheriff of “no property found,” which latter is made evidence of the inability of the primary debtor to pay. In Pearson v. Mitchell, 2 Ala. Rep. 736, the action was brought to the county court, being the one first holden, and the writ was returned not found; thereupon the plaintiff dismissed his suit, and commenced anew to the next circuit court: Held, that the second suit was regularly instituted, as it would stand for judgment sooner than if an alias writ had been issued from the county court. It appears in the case before us, that James Long resided in Talladega, when the sheriff of that county held the writ which was returnable to the county court; there can therefore be no question, but that suit was commenced in due season, and of the right of the plaintiff to dismiss it as to him on whom the process was not served. But the question is, in what county should the second writ have issued. The suit against James Long was instituted on the 3d February, 1842, at most but three or four days after his removal to Randolph. There is no proof that his change of residence was open, visible, or notorious, or even known to the plaintiff; and there is nothing in the record to indicate that he was a freeholder in Randolph, or that he was otherwise exempt from liability to suit in Talladega. The fact that the judgment was rendered against him, is perhaps conclusive, that he was suable in Talladega. The suit against John Long was transferred to the circuit court, in consequence of the probable interest of the judge of the county court, and judgment was rendered therein on the 31st May, 1843 — a judgment having been recovered against James Long two days previously. Thus we see that the plaintiffs obtained a judgment against both the defendants quite as soon as if the service of the writ first issued had been perfected to the term to which it was returnable; and the judgment against James Long was not delayed by suing him to the circuit court. [455] If then, the suit against James Long was regularly instituted in the circuit court of Talladega, the plaintiffs were not bound to take notice of his removal to Randolph, and cause a fieri facias to be placed in the hands of the sheriff of that county. If they had been informed of it, and that an execution would there be likely to be more availing than if issued to the latter county, perhaps it would have been their duty to have had it issued there. But they are not charged with such a duty in the absence of any information on the subject; and it cannot be assumed from the proof set out in the record that the return of “ no property found,” was not made by the “ proper officer.” This view may suffice to show the error in the ruling of the circuit court. The other questions raised will hardly present themselves on a future trial: if they do, a slight attention to very plain principles will prevent a misapprehension of the law. We have but to add, that the judgment is reversed, and the cause remanded.