McDougald's Adm'r v. Rutherford
Supreme Court of Alabama
Appeal from tlie Circuit Court of Russell. Tried before the Hon. JonN Gill Shorter. This action was brought by Adolphus S. Rutherford against the administrator of Daniel McDougald, deceased; was founded on the intestate’s endorsement of a promissory note for $115, executed by John Ii.
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Appeal from tlie Circuit Court of Russell. Tried before the Hon. JonN Gill Shorter. This action was brought by Adolphus S. Rutherford against the administrator of Daniel McDougald, deceased; was founded on the intestate’s endorsement of a promissory note for $115, executed by John Ii. "Watson and B. W. Walker, dated “Columbus, Dec. 31, 1844,” and payable, twelve months after date, to Augustus Grant or bearer; and was commenced on the 14th March, 1851. The declaration, after setting out the execution of the note, and its endorsement by the defendant’s intestate at Columbus, Georgia, averred…
1Opinion of the CourtWalker, J.
The declaration contains no averment of a demand of the makers of the note, and notice to the endorser, nor of any excuse for the omission of such demand and notice. Therefore, the. declaration does not show a liability upon the endorsement, if tested by the common law. — Mims v. Central Bank of Ga., 2 Ala. 295. On the other hand, there is no averment of facts showing a compliance with the Alabama statute, which requires a prosecution of the maker to a return of nulla Iona. There *257is, therefore, no cause of action found in tbe declaration, when tested by tbe Alabama law. If then tbe…
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