Lowry's Admr's v. Western Bank of Georgia , 7 Ala. 120 ( 1844 )

GOLDTHWAITE, J.

— Two principal questions have been raised in this case. The first is, whether the charter of the-Bank can affect the indorsement made in Alabama, so as to-render a demand of payment of the maker, and notice to the-indorser unnecessary to fix his liability. The other is, whether a fall indemnity taken by an indorser from the maker, subsequent to the dishonor of the note, will have the effect to revive the liability of the latter, whep he is not charged by notice. We shall consider each in its turn.

1. The counsel for the plaintiff in error do not deny the general principle, that the indorser is chargeable according to-the law of the place of indorsement, but they insist here, that as this note was made and indorsed with a view to its negotiation in Georgia, and was to be performed with a view to the laws of that State, (as averred in the last count of the declaration,) these must prevail, and furnish the rules by which the liability of the indorser, as well as the maker, is to be ascertained and governed. We think this argument is not sustained by any principle known to the law. Every indorser of a bill drawn in this State, upon another, or upon a foreign country, enters into the contract with a view to the negotiation and payment of the bill there; but this does not in any manner bring his indorsement within the influence of laws which are local to the place where the bill is payable. The averments, of the intention of the parties, which are introduced into this count of the declaration, are no other, or different from those which are presumed in every case of indorsement of a negotiable instrument. It may then be considered as if these aver-ments were entirely omitted; if such was the form of the count, the indorsement would be within the precise principle conceded by the counsel, and universal^ held by all writers upon commercial law. [Story on bills/| 397, 399, 177, n. 2 ; Chitty on bills, 661, 881.] , • •

2. With respect to the supposed the indorser’s liability by his acceptance of, or pro<fi|jra||]ndemnity from the maker, the principal authorities relied'oh’.by the counsel for the defendant in error, are Bard v. Farnham, 5 Mass. 170; Tower v. Durell, 9 Ib. 332, and Chilton v. Robbins, 4 Ala. Rep. 223. The first and last of these-¡cases are, where the indemnity was accepted before the dishonor pf the note, and the principle upon whiph the decisions afef'made, is, that the party accepting the indemnity, is advised beforehand that the paper will not be paid, and has acted upon pulpad vice so as to fully secure himself. The case is entirel^S^'n^ed when the default has taken place and the iudorser-h"ever been fixed by notice. Then the holder feas never look«K'o the indorser for payment, nor has he acted upon iuformalllm, which, in itself has been held to be equivalent to notice.” We know of no decisions which carry the principle so far -as to revive a liability which has been discharged, or rather., which never was fixed in consequence of the laches of the -holder.

In Tower v. Durell, the other case cited by the defendant’s counsel, it was decided that an indemnity taken by an indor-ser, under the impression it had been fixed by notice, was not sufficient to revive a liability which never in fact existed. It is not improbable that in equity the plaintiff in this case might compel-the representatives of the indorser to enforce the indemnity received by him for their benefit; but, however that may be, we are satisfied that no obligation is created by it for ■them to answer for the indorsement, as if their liability had been, fixed by notice.

This conclusion will enable us to décide all the questions raised on this record. The first count avers demand and notice in the usual form; the second describes the note and in-dorsement as made in Georgia, and sets out the law of that State which excuses demand and notice; the sixth count is upon an account stated; all these counts are substantially good; but the remainder are defective in ' showing no sufficient ■excuse for notice. The demurrers ought 4o have been sustained therefore to the 3d, 4th, and 5th counts of the declaration.

There was also error in the charge of the Court, which instructed the jury that the acceptance of the indemnity was a revival of the indorser’s liability.

For these errors the judgment must be reversed, and the cause remanded. "