White v. Low

Hand, J. It is said that the plaintiff shows no title to sue. The plaintiff, when he sues as receiver, should at least state the place of his appointment, and distinctly aver that he has been appointed by an order of the court. Alledging that he was duly appointed on such a day, is not sufficient. (Gillet v. Fairchild, 4 Denio, 80.) The defendant can insist that the facts constituting the appointment, as set out, shall be sufficient to show one has been made, and that these facts be so set out as to be triable. But I do not think this cause of demurrer sufficiently assigned. These pleadings were put in under the code of 1848; and that required such causes of demurrer to be distinctly stated, or they might be disregarded. (§§ 123, 127. And see Amended Code, § 145.) Here it is merely stated that it does not appear that the plaintiff had any title to the note when the suit was commenced. Notwithstanding what was said in Herrick v. Carman, (12 John. 159,) Tillman v. Wheeler, (17 Id. 326,) and Seymour v. Van Slyck, (8 Wend. 403,) and I may add in Prosser v. Luqueer, (4 Hill, 420,) I think this is not a guaranty. The defendants Low and Artcher, as we shall see, can be treated as indorsers; and the better opinion now is, that where that can be done, there is no option with the holder. If indorsers, they have all the privileges of indorsers, and not of guarantors. (Hall v. Newcomb, 7 Hill, 416. Spies v. Gilmore, 1 Comst. 321.) And see Brown v. Curtis, (2 Id. 227, Bronson, J.;) Durham v. Manrow, (Id. 533, Jewett, C. J.) It was not necessary to aver presentment of the note by the owner, personally. Such is not the established form, (2 Chit. Pl. 158, 9,) even if an averment of presentment is necessary. (Seymour v. Van Slyck, 8 Wend. 404.) The chancello]-, in Hall v. New-comb, thought demand and notice necessary in these cases. But Low and Artcher, having indorsed the note, became liable, [207] as indorsers, to the Canal Bank, to whom they transferred and delivered it, and, consequently, to the plaintiff as receiver. Before the code, they could not thereby transfer the legal title to the note to the Canal Bank, as against Seaton the maker. (Story on Bills, § 199. U. States v. White, 2 Hill, 63.) But although not negotiable, by indorsing it, they conferred upon the Canal Bank such right of action, as against themselves. (Story on Bills, § 199. Chit. on Bills, 198, 241, 2. Seymour v. Van Slyck, 8 Wend. 404. Hill v. Lewis, 1 Salk. 132. And see Plimley v. Westley, 2 Bing. N. C. 249.) There is, therefore, no valid objection to a recovery by the plaintiff in a suit against Low and Artcher. And although there is properly no privity of contract between the Canal Bank and the maker, in a court of law, yet it would seem that the Canal Bank, as assignee of a chose in action, can maintain a suit against Seaton, under the code. (Code of 1848, §§ 91,2, 3; Amended Code, §§ 111, 112,113.) For some purposes the code, perhaps, gives every chose in action this attribute of negotiable paper. But the objection to a recovery by the plaintiff in this case is, that he has joined distinct causes of action in the same suit. Upon this point the demurrer is well taken. Seaton made no contract to pay the note to the Canal Bank. And that bank, and consequently the receiver, must sue him as assignee: whereas the suit against Low and Artcher is by the indorsee against the indorser. The rights of parties, in cases of indorsements, are very different from those acquired by assignment. The indorsement in this case, too, is equivalent to a new note, and is a distinct contract. So much so, that in Plimley v. Westley, (supra,) it was held that a new stamp was necessary. Possibly a surety or guarantor, liable contingently, may be made a party in some cases, on the ground of his liability over, as is sometimes done in equity; but as to that I give no opinion. Although the practice of the two courts is assimilated, principles applicable only to suits at law, and those applicable only to cases in equity, in many cases remain as before; and are distinct and well defined. And contracts can not be changed, nor rights de [208] stroyed, by a change of remedies. The remedy in this case is at law, and the rules applicable in such cases govern, except when changed or abrogated by statute. I find nothing in the code doing either in this case. On the contrary, such misjoinder is impliedly inhibited. (Code of 1848, §§ 99,143 ; Amended Code, §§ 119, 167.) And particularly, by the code of 1848, the cause of action joined must “ equally” affect all the parties; though I think the misjoinder here as fatal under the phraseology of the amended code. It follows that the suit can not be maintained against Low and Ai'tcher jointly with Seaton. There must be judgment for the defendants; with leave to the plaintiff, if he shall be so advised, to amend upon the usual terms. Judgment for the defendants.