Goggins v. Smith's Adm'r

STONE, J. The defense set up in the 3d, 4th, 5th and 6th pleas, was available under the 1st and 2d pleas. Further, in this case the defendant actually introduced in support of the latter the evidence he relied on to sustain the former pleas. Having the full benefit of the entire defense he could have made, had the demurrer to his 3d, 4th, 5th and 6th pleas been overruled, it is manifest, if the court erred in sustaining the demurrer, it was error without injury. Hence, we will not' inquire whether either of those pleas tendered a valid defense. — -Shep.Dig. 568, §§ 93, 96; Powell v. Asten, at the present term. It is not our purpose, in what we have said above, to shake our former decisions on the question - there presented. See Powell v. Asten, at the present term. [2.] Section 1543 of the Code declares the general rule for fixing the liability of endorsers, “on all contracts assigned by writing, except bills of exchange, or other instruments, and notes payable in money, at a bank, or private banking-house, when the amount due is over fifty dollars.” The rule thus laid clown wTas evidently intended to supplant the old rule of demand and notice, as recog [687] nizeil in the law-merchant. The effect of this section is to abolish demand and notice, as a means of fixing the liability of endorsers, except on bills of exchange, and notes and other instruments payable in money at a bank, or private banking-house. The rule substituted is, suit against the maker, to the first court to which suit can properly be brought, &e. Section 1546 of the Code declares, that “the holder of such endorsed or assigned contract is excused from bringing the suit, obtaining the judgment, and issuing the execution thereon, when the maker has no known place of residence in the State.” This language is clear and unmistakable. Its effect is to render the liability of the endorser primary and absolute, whenever the maker has no known place of residence in the State. The language of the statute being clear and unambiguous, it is not for us to speculate about its meaning or spirit. One who resides without the State, but who was temporarily on a visit to this State, can, with no propriety, be said to have had a residence in this State. The various rulings of the circuit court were in accord, an ce with these views. Judgment affirmed. R. W. Walker, J., yields ¿to this opinion a reluctant assent.