Simpson v. Ranlett
| Decision Date | 31 December 1845 |
| Citation | 1845 WL 3932,7 Ill. 312,2 Gilman 312 |
| Parties | JOSHUA B. SIMPSONv.SETH A. RANLETT. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
ASSUMPSIT in the Putnam circuit court, brought by the appellee against the appellant, and heard at the November term, 1845, before the Hon. John D. Caton, on a demurrer to the declaration. The demurrer was overruled, and the defendant abiding by the demurrer, the court rendered a judgment for the plaintiff for $391.64.
A. LINCOLN, for the appellant, as to the averment of the indorsement, cited Sappington v. Pulliam, 3 Scam. 385.
E. N. POWELL and W. F. BRYAN, for the appellee.
Under our statute, promissory notes are assignable by indorsement in the same manner that bills of exchange are. Rev. Stat. 384, § 4; 2 Chitty's Pl. 124.
In a declaration by the indorsee against the maker, it is not advisable to allege that it was under the hand writing of the maker. Chitty on Bills, 551, 572.
As to the mode of stating the indorsement, see hitty Con Bills, 569, 572.
The declaration must be according to the legal effect, etc. Manhattan Co. v. Ledyard, 1 Caines, 192; Chitty on Bills, 564, 566. “His own proper hand thereunto subscribed,” should be omitted. Ibid. 570. It is not necessary to aver a delivery. Ibid. 569, note.
a1
This was an action of assumpsit, commenced at the November term of the Putnam circuit court, 1845, by Seth A. Ranlett, the plaintiff below, against Joshua B. Simpson, and the damages laid at six hundred dollars. The declaration contains two counts; the first declares upon a promissory note made by Simpson to Isaac Burnett for $323.64, dated at St. Louis, December 2, 1841, payable five months after, and indorsed by Burnett to Ranlett, the day on which it was executed; and the second for money lent, for money received to the plaintiff's use, and for money due to the plaintiff on settlement, etc.
The defendant below, interposed a demurrer to the first count, to which there was a joinder; and pleaded non assumpsit to the second count, upon which an issue was made to the country. The court upon argument, overruled the demurrer, and the defendant, Simpson, abiding by the decision thereon, the plaintiff, Ranlett, thereupon entered a nolle prosequi as to the second count of the declaration.
The court then ordered the clerk to assess and report the damages upon the first count, who assessed and reported the same at $391.64, which was approved by the court, and judgment rendered therefor, in favor of the plaintiff, Ranlett, as well as for his costs; from which judgment, the defendant, Simpson, has prosecuted an appeal to this court, and assigns for error the following causes:
1. The circuit court erred in overruling the defendant's demurrer to the first count of the plaintiff's declaration; and
2. The judgment should have been for the defendant and not for the plaintiff.
The only question presented for the consideration of this court, is in relation to the sufficiency of the averment in the first count of the plaintiff's declaration as to the assignment of the note declared upon, by Burnett to Ranlett, to enable Ranlett to maintain the action in his own name against Simpson.
The declaration, after stating the making of the note by Simpson to Burnett in the usual form, contains this averment as to the indorsement: “and the said Isaac Burnett then and there indorsed the same to the said plaintiff, whereof the said defendant then and there had notice, etc.” This averment of the indorsement, the counsel for the appellant, Simpson, insists, does not set forth such an assignment of the note, as is required to be made by our statute, and that consequently the appellee, Ranlett, can not maintain this action against him in his own name as indorsee.
The fourth section of the 73d chapter of the revised statutes of 1845, p. 384, which provides that promissory notes, bonds, due bills, and other instruments in writing, shall be assignable by indorsement thereon, in the same manner as bills of exchange are, reads as follows: “Any such note, bond, bill, or other instrument in writing, made payable to any person or persons, shall be assignable by indorsement thereon, under the hand or hands of such person or persons, and by his, her or their assignee or assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof, in each and every assignee or assignees successfully.” I will, in the first place, enquire as to the manner in which bills of exchange are made assignable by indorsement: and in the second, how the indorsement, when thus made, is to be set forth by way of averment in the plaintiff's declaration, so as to enable the indorsee to sue and recover in his own name, under that provision in our statute.
I find upon examination of the English statutes that there is no legislative provision, as to the form or requisites of an indorsement of a bill of exchange, (except in the case of bills under £5); and that the several modes of transfer depend on the terms of the instrument to be indorsed, as whether it be payable to the bearer, or the order of the drawer or payee, as in the former case the bill will be transferable by delivery, and in the latter by indorsement, which may be...
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