Bristow v. Jones
Supreme Court of Alabama
Writ of error to the County Court of Wilcox County. ACTION of assumpsit against Jones as the endorser of a promissory note made by one Shering, dated, 15th October, 1836. Payable 12 months afterdate, to Jones or bearer. The declaration contains no averment of diligence to obtain the sum due from the maker, by suit or otherwise.
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Writ of error to the County Court of Wilcox County. ACTION of assumpsit against Jones as the endorser of a promissory note made by one Shering, dated, 15th October, 1836. Payable 12 months afterdate, to Jones or bearer. The declaration contains no averment of diligence to obtain the sum due from the maker, by suit or otherwise. As an excuse for this omission, the plaintiffs allege that the maker was a non-resident of this State when the endorsement was made, and also, when the note became due, and could not be found within the State after diligent search and inquiry. The defendant demurred,…
1Opinion of the CourtGoldthwaite, J.
— In the case of Ivy v. Sanderson, (6 Porter, 420) we held that when the maker of a note was known to the endorsee, to reside without the limits of the State, when the endorsement was made, it was incumbent on him to use diligence to obtain the sum due from the maker, before he could sue the endorser. That case is decisive of this, unless we can presume, the plaintiffs were ignorant of Shering’s place of residence. We think no such presumption can be made as the de*160elaration admits he was a non-resident when the note was endorsed. We cannot perceive how this fact could be known to them and…
2Cases cited1 opinion
- Ivey v. SandersonSupreme Court of Alabama · 1838
3Cited by5 opinions
- Rutledge's Adm'r v. Townsend, Crane & Co.Supreme Court of Alabama · 1863
- Alabama Power Co. v. PierreSupreme Court of Alabama · 1938
- Hall v. ChiltonSupreme Court of Alabama · 1842
- Howze v. PerkinsSupreme Court of Alabama · 1843
- Bradley, Wilson & Co. v. Patton, Donegan & Co.Supreme Court of Alabama · 1874