Whiting v. King , 1 Minor 122 ( 1823 )

Judge Crenshaw

delivered the opinion of the Court.

In this case there are nine assignments of Errors. It will only be necessary to take notice of the second, viz. “ That “ the plaintiff in the Court below pi'oceeded in an action of “ debt, when the defendant was liable only in assumpsit.”

The undertaking of the indorsee is collateral, not absolute. He is liable only in the event of the maker’s failing: to pay. The remedy against him is by action of assumpsit and not debt. This Error is not cured by our Statute of amendments. In this opinion the Court are unanimous, Judgment reversed.