Catlin v. Jones

Milleb, J.

This is a writ of error sued out by John Milton and John Catlin to reverse a judgment in the district court of Iowa county, on a negotiable promissory note, made by said Catlin to said Milton, and by him *132 indorsed in blank before due. These defendants were sued with other persons who had also indorsed said note, and at the trial the plaintiff asked and obtained leave to discontinue as to them; which was allowed by the court. This is the first error assigned. Whether a joint action against all the defendants was legal or not, is not now to be determined, as that point was not raised. The plaintiff, by Ms suit, considered it a j oint contract. Under the 68th section of the act concerning proceedings in courts of record, page 207, Territorial Statutes, the plaintiff may be allowed to discontinue as to part of the defendants, amend his declaration, and proceed to judgment against the rest on the conditions therein set forth.

The note was indorsed in blank by John Milton before due, and so it was averred in the declaration. After suit brought, the attorney of the plaintiff filled up the blank indorsement of said Milton with these words : “Ipromise to pay, jointly with the malcer, the within note to David W. Jones.” This is assigned for error.

The liability created by the indorsement is founded in the law merchant, and must be governed by its principles. The undertaking of the indorser is only to pay in case the maker does not pay. The indorsee is therefore bound to apply to the maker of the note, and he takes it upon this condition. Hence it is, that in an action by an indorsee against an indorser of a note, the declaration must aver, that the note on becoming due, was duly presented to the maker and that he refused to pay, of which the defendant had notice. This is an essential part of the plaintiff’s case, and he is bound to aver and prove it. 13 Mass. 131 ; 9 Johns. 121 ; 8 Serg. & Rawle, 351 ; 4 Cranch, 141 ; 9 Wheat. 584 ; Chitty on Bills, 809; 3 Wash. C. C. 206 ; 5 Binney, 502; 1 Serg. & Rawle, 334 ; 9 id. 201; 16 id. 157; 4 Wash. C. C. 1 . And the plaintiff or his attorney could not bind Milton beyond this, by making this addition over his indorsement; particularly after suit brought and the usual declaration *133 filed, setting out a blank indorsement, demand and notice, and as at tke trial no notice was proved: Chitty on Bills, 798; 17 Johns. 325 ; 2 Saund. 739.

It is therefore ordered and adjudged that the judgment be reversed with costs.

Dunn, Ch. J., dissented.