Porter v. Buckholts , 32 Tex. 487 ( 1870 )

Lindsay, J.

The action in this case was brought upon a promissory note, executed and delivered to the appellant in 1861, and payable the 1st day of January thereafter, and by Mm indorsed in blank to the appellee. The maker of the note being beyond the limits of the State, the holder brought this suit against the indorser on the 28th day of April, 1866. It is assigned as error that the diligence required to fix the liability of the indorser was not used by the holder, and the indorser is therefore released. . ■

The courts of the State were open, by the proclamation of the Provisional Governor of Texas, for the assertion of rights as early as August or September, 1865, and suits were authorized to be prosecuted in all the District Courts of the State, at the Fall term of that year, with only a restriction upon the issuance of executions. The Burleson court was authorized to be held, and it is presumed, it was held about the middle of the month of November, 1865. That was the first term of the court at which suit could have been brought after the cause of action accrued. In the record no reason appears why suit was not instituted at that term. The suit was brought to the second term, at which it could be brought after the cause of action accrued. But no reason is assigned for not bringing it to the first. Without some valid reason, the failure so to bring it operated as a release of the indorser from liability to pay the note.

The judgment of the District Court is therefore reversed and the cause dismissed.

Beversed and dismissed.