Ryland v. Bates , 4 Ala. 342 ( 1842 )

ORMOND, J.

The statute by which this question must be decided, makes all contracts assignable, and gives to the assignee the right to sue in his own name, “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 indorser shall be discharged from liability unless suit shall be delayed by his consent.” [Aik. Dig. 330.]

The previous section of this law had declared that bills of exchange, foreign and inland, and promissory notes payable in bank, should be governed by the rules of the law merchant, and we think it cannot admit of a serious doubt, that the contract of an indorser of mercantile paper, or that of an assignor of paper not mercantile, is conditional, and that to establish his liability, the condition must be shown to have been performed. The liability of an assignor of paper not mercantile, is not an absolute one, to be defeated if the assignee does not bring suit against the maker as required by the statute, but is dependent on the performance, by the assignee, of the condition.

The bringing suit as required by the statute, where no excuse exists for the omission, is a condition precedent to the right of the assignee to recover, and must therefore be averred in the declaration.

We are unable to perceive the difference between the case of an assignor under the statute, and that of an endorser under the law merchant, as it respects this question, and it would be quite ás proper to permit a recovery against the latter where there was no averment of demand and notice, as against the former, when no suit was averred to have been brought, or excuse offered for not bringing it.

Let the judgment be reversed and the cause remanded.