Boals v. McConnell , 2 Ky. 130 ( 1802 )

On examining the tecord. in this case, it appears that the attachment was founded on a single bill, executed by William Ingledove, to the defendant in the court below, for one hundred dollars, payable on the 1st day of August, 1796, which bill, on the 12th day of March, 1799, was assigned to the said defendant by plaintiff. The inferior court gave judgment for the one hundred dollars and interest, considering the assignment as being obligatory on the defendant to pay the amount of the bill. This opinion would have been correct, provided the indorser had commenced suit against Ingledove, and he had proved insolvent; or, upon using due diligence, had failed to get the money from him. Boals only undertook, in case Ingledove did not pay. It is well settled in the case of promissory notes, that the indorsee is bound to apply to the maker of the note. He takes it upon that condition, and therefore must in all cases know who he is and where he lives; and if, after the note becomes payable, he is guilty of a neglect, and the maker becomes insolvent, he loses the money, and can not come upon the indorser at all. None of these things appear to have been done by the plaintiff in the court below. The judgment is therefore erroneous, and must be reversed. Therefore, it is considered by the court, that the judgment aforesaid be reversed, annulled, and set aside; and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to said court.