
    Dugdale v. Marine.
    The assignor of a promissory note is not liable on the assignment where no suit has been brought by the assignee against the maker, unless, at the time the note became due, the maker had no property subject to execution.
    
      Friday, December 3.
    APPEAL from the Wayne Court of Common Pleas.
   Davison, J.

Marine sued Dugdale as assignor of two promissory notes — one for the payment of 70 dollars, and the other for 200 dollars. The notes were each executed by one Alfred Shinn to Dugdale, and by him assigned to Marine, who was the plaintiff.

The complaint avers that Shinn, on the 25th of December, 1856, the day on which the notes severally became due and payable, was, and at all times since has been, and still is, notoriously insolvent; and that the notes remain unpaid, &c.

The main question involved in the assignment of errors is, whether the evidence given on the trial proves the insolvency of the maker of the notes, as alleged in the complaint. In this instance, no suit appears to have been brought by the assignee against the maker, and when that is not done, the assignor is not liable on the assignment, unless, at the time the notes became due, the maker had no property subject to execution. 1 Blackf. 181.—8 id. 304.-7 Ind. R. 247.

At the proper time, the defendant moved to suppress various portions of depositions taken by the plaintiff to be read in evidence in the cause. The motion was decided by the Court, but whether correctly or not, is a question not important in the consideration of the case; because, in our opinion, the evidence given, and to the admission of which there was no objection raised, sustains the case made by the complaint.

J. Perry, for the appellant.

J. B. Julian, for the appellee.

Per Curiam. — The judgment is affirmed, with 5 per cent, damages and costs.  