Insall v. Robson
| Decision Date | 01 January 1856 |
| Parties | RICHARD INSALL v. JOHN H. ROBSON AND ANOTHER. |
| Court | Texas Supreme Court |
Where the maker of a note is notoriously insolvent, it is not necessary to sue him, to the first term of court, or etc., in order to fix the liability of an assignor or indorser; in such cases the indorser is primarily liable; nor can he object that suit was not brought against himself to the first term of the court. [ Post, 219; 23 Tex. 481.]
It is no objection to the liability of an indorser or assignor of a note that it was indorsed or assigned after maturity, or that it was payable to the payee or bearer.
Error from Colorado. Tried before the Hon. Nelson H. Munger.
Suit commenced June 16, 1853, against Archibald McNeill, John H. Robson and Charles L. Muckleroy, by the plaintiff in error, on a promissory note, dated February 20, 1852, of McNeill, payable to Robert Robson or bearer, one day after date; transferred by delivery to John H. Robson; assigned in part by the latter to Muckleroy; and on the 7th of October, 1852, indorsed by John H. Robson and Muckleroy to the plaintiff. The petition alleged that suit was not brought against McNeill heretofore, because he was, at the time of said indorsement, and ever since, notoriously insolvent. The demurrer of Robson and Muckleroy to the petition, on the ground that the plaintiff had not used due diligence in bringing suit against McNeill, was sustained, and the suit dismissed as to them, and judgment against McNeill.
G. W. Smith, for plaintiff in error.
J. H. Robson, for defendants in error.
By the provision of the 6th section of the etc., the assignor or indorser may be sued without the necessity of previously suing the drawer or maker, when he is ““notoriously insolvent.” If the insolvency of the maker will dispense with the necessity of suing him at all, in order to hold the indorser liable, it of course must dispense with the necessity of suing him to the first term of the court. It is the suing of the maker which fixes the liability of the indorser, under the statute; and where that is unnecessary, it cannot be necessary to sue the indorser himself to the first term, in order to fix his liability. The diligence prescribed by the statute, as a substitute for that required by the law merchant, is the suing of the maker, not the indorser. (Hart. Dig. arts. 2520, 2528.) The statute does not require that the...
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...Lingo, 57 Tex. Civ. App. 634, 123 S. W. 177; Bank v. Robinson, 124 S. W. 177. In several of the cases cited and in the case of Insall v. Robson, 16 Tex. 128, Hanrick v. Alexander, 51 Tex. 494, and Burrow v. Zapp, 69 Tex. 474, 6 S. W. 783, it is expressly held that the insolvency of the make......
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