Murphy v. Gee , 9 Ala. 276 ( 1846 )

GOLDTHWAITE, J.

In the recent decision of Hagerthy v. Bradford, at this term, Ave held, that Avhenever an indorsee, in his suit against the maker, fails upon the merits of the cause, in obtaining a judgment for the amount of the note, such judgment is prima fade evidence in all cases to charge the indorser, when the suit is commenced with the statutory diligence.

From this decision, we may deduce the rule of pleading proper to suits against the indorser, upon the failure to recover from the maker. The averments of the declaration, in our judgment, should show the suit Avas determined in favor of the maker, upon tibe merits of the note. The averment here is, that the judgment was rendered in favor of the maker ; and this might be as well on some defence against the indorsee, as upon the merits of the note. We think the averments do do not sufficiently show the suit against the maker Avas determined on the merits of the note, and therefore the decla-« ration is defective.

Judgment affirmed.