UNITED STATES SUPREME COURT DECISIONS ON-LINE

The endorser of a promissory note who endorses to give credit to the note and who is countersecured by property pledged, is not liable upon the note, nor in an action for money had and received, unless the plaintiff show that the maker is insolvent or that he has brought suit which has proved fruitless. It is not sufficient to show that the maker of the note is out of the reach of the process of the court.

Error to the Circuit Court for the District of Columbia sitting at Alexandria in an action of assumpsit by the endorsee of a promissory note against his immediate endorser. The note was made by Wellborn on 1 January, 1806, for $200, payable to Hodgkin or order 120 days after date, negotiable at the Bank of Alexandria. On the clubjuris

Page 9 U. S. 334

trial, the plaintiff did not produce any evidence of a suit against the maker, nor evidence of his insolvency, but proved that the maker never was an inhabitant of the District of Columbia, but resided in Albemarle County, in the State of Virginia, whereupon the court, upon the prayer of the defendant, instructed the jury that it was still necessary for the plaintiff to prove to the satisfaction of the jury that he had brought suit upon the note against the maker, or that a suit against him would have been fruitless, before he could resort to the endorser. To which instruction the plaintiff excepted.