Booth v. Storrs

Citations

• 54 Ill. 472

Syllabus

<p>1. Assignor—diligence required of an assignee. In an action by the assignee against the assignor of a promissory note, wherein it was alleged that the institution of a suit against the makers would have beeu unavailing, it appeared the makers thereof had committed acts of bankruptcy, and a petition had been exhibited against them in the United States district court for the northern district of Illinois, and an assignee -appointed, who had taken possession of their estate: Held, the rule of diligence imposed by the statute upon the assignees of promissory notes, in order to fix the liability of assignors, did not require the plaintiff to present his claim in the district court; and he was not, by reason of not having done so, chargeable with such laches as exonerated defendant from liability as assignor.</p> <p>2. The presentation of the note by the assignee thereof, in the bankruptcy proceeding, would not be a suit against the makers, or their heirs, executors or administrators, in the sense in which the term is used in the statute, which requires a suit against the maker, etc. for the recovery of the money or property due thereon, or damage in lieu thereof, these latter words being descriptive of a personal action.</p> <p>3. The statute only requires that the assignee of a note, before he can proceed against the endorser, shall use due diligence by proceeding at law against the maker; and the proceedings at law were intended to be in the courts of law in this State.</p> <p>4. He is not required to go into a foreign jurisdiction; and the district court of the United States being created and acting under another sovereignty, the assignee can no more be required to resort to such court, than to proceed against the property of the maker in a sister State.</p> <p>5. Practice in the Superior Court of Chicago—trying a cause out of its regular order. Under the rule of the Superior Court of Chicago, providing that certain cases may be tried out of their order, upon the f