Bartlett v. Byers

35 Ga. 142

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Lumpkin, C. J.

I feel strongly inclined to sustain this action. I can see some decided advantages growing out of such a practice. I hope the Legislature will make it lawful. The endorser is usually more interested than the holder of such a note in contesting the insolvency of the maker ; and the verdict of the jury might be so moulded under the Code, as to first pursuing the property of the maker, the adjustment of costs, &c., as to make it work well, as on suits in administrator’s and guardian’s bonds. But the difficulty is, the endorser is not liable to jan action, until the insolvency of the maker is established, and he notified of the fact. To institute a suit agkinst him before this, would seem contrary to principle and his contract. He ought not to be harrassed with a suit before this condition precedent is performed.

Upon the whole, however reluctantly, we feel constrained to affirm the judgment.

Judgment affirmed.