Keater v. Hock

11 Iowa 536

• Court: Supreme Court of Iowa
• Decided: April 18, 1861
• Status: Published

Opinion

Baldwin, J.

Section 955 of the Code of 1851, provided that the indorser of a negotiable instrument was liable to the action of the indorsee, assignee, or payee without notice, ii the indorsee, assignee or payee had used due diligence in the institution and prosecution of a suit against the maker or his representative. By section 3, chapter 108, of the act of 1853, it is provided that grace shall be allowed upon bills and notes according to the principles of the law merchant, and notice of non-payment, or non-acceptance, or both, of said instruments shall be required according to the principles of the commercial law.

The section of the Code, as above referred to, changed the rule of the commercial law which required notice of the dishonor of a note or bill to be given to the indorser, otherwise he was not liable. The act of 1853 revives the rule of the .commercial law, which requires such notice to be given, and repeals all acts in conflict therewith. The provisions of the Code, which required only reasonable diligence, by suit against the maker, to charge the indorser, were, by the act of 1853, repealed, as the two provisions are repugnant to each other.

The defendants, as indorsers, were not liable, as they had no notice of the dishonor of the note sued on. The institution of suit against the maker was not of itself sufficient to make defendants liable. The demurrer to the petition was properly sustained.

Affirmed.