Cook v. Mutual Insurance , 53 Ala. 37 ( 1875 )

BRICKELL, C. J.

The promissory note, indorsed by the appellant, is not on its face payable at a bank, or private banking house, nor is it averred in the complaint that the vplace at which it is payable is the one or the other. The ■only contracts made and payable in this State, which when the note was made were subject to the commercial law, were bills of exchange, and promissory notes payable in money at :a bank or private banking house. R. C. §§ 1833, 1851. All contracts in writing for the payment of money, or other things, or the performance of any act or duty, are assignable by indorsement, so as to authorize an action thereon by each successive indorsee. R. C. § 1838. All contracts so assigned, except bills of exchange and promissory notes, or other instruments, payable in money at a bank or private banking house, were subject in the hands of the assignee to all payments, discounts and setts-off, made or had prior to notice of assignment, and to any defence which could have been made against the assignor or indorser. R. C. §§1839, 2523. To charge the indorser or assignor of paper not commercial, if the amount due thereon exceeds fifty dollars, suit against the maker to the first court in the county of his residence, to which suit can properly be brought, after the indorsement or assignment; and if judgment is obtained, execution returnable to the next term, issued, and his inability to answer the judgment proved by the return of “no property found,” is necessary. R. C. §1851. A suit against the indorsee of paper not commercial cannot be maintained without averment and proof of this suit, and its prosecution, or of some sufficient excuse for its omission. 1 Brick. Dig. 281, § 410.

The circuit court holding the appellant was the indorser of commercial paper, fell into various errors it is not necessary to notice. The promissory note disclosed in the complaint, and set out in the bill of exceptions, was not, at its making, commercial paper. The liability of appellant and the measure of his rights, are not defined or controlled by the mercantile law, but by the statutes to which we have referred. The complaint, as it is now framed, does not disclose a substantial cause of action against appellant, and no judgment rendered thereon against him could be supported. Since the making of the promissory note on the indorsement of which this suit is founded, the statute of April 8th, 1873 (Pamph. Acts 1872-3, p. Ill), has converted promissory notes, payable in money at a designated place, into negotiable instruments governed by the commercial law. It operates on the nature and obligation of the contract of the parties to such notes, and cannot be construed as affecting notes made and indorsed prior to its passage. ■ The law of force, when the note is made and indorsed, regulates and defines the liability of the parties. Bloodgood v. Cammack, 5 St. and Port, 276.

The judgment is reversed and the cause remanded.