Sawyer's Adm'r v. Patterson

COLLIER, C. J. In Riggs v. Andrews & Co. 8 Ala. R. 628, it was held to be unnecessary to fill up^, blank indorsement, even when the description in the d*r|^SraMon is, that the note was indorsed to the plaintiff. Andcts v. Keyset, 1 Stewt. Rep. 154, it was decided that wTiere the plaintiff produces a note payable to himself, he is presumed to be [527] the owner of it, though it appears to have been indorsed by him to another person. The cause in which Bradford recovered a judgment against the intestate, upon the note on which the present action is brought, was before this court at a previous term. [6 Ala. Rep. 572.] We there said “that after a judgment by Patterson as assignee of Wilson, the payee; against D. Sawyer, the principal, the note was assigned by Wilson to the defendant in error, who again put the note in suit against the plaintiff in error, the other party to the note not sued in the first action. In Brown v. Foster, 3 Ala. Rep. 284, we held that by the judgment in favor of the first assignee, the note had lost its negotiable quality, and could not be again transferred, so as to enable the transferee to sue in his own name.” And thereupon the court reversed the judgment. These citations are quite sufficient to show that the note lost its assignable quality previous to the insertion of Bradford’s name in the indorsement. Its insertion was a mere nugatory act, and striking it out did not in any manner affect the validity of the note, or the liability of the defendants to pay it. The legal title to the paper was in the plaintiff, and his striking out the name of Bradford, the written evidence, when coupled with the possession, indicated his right without inserting his own name. This conclusion is the necessary result of previous decisions, and requires no further argument to support it. In Sawyer v. Bradford, supra, it was said, that “the direction to the sheriff to stay the execution was without consideration, and might have been countermanded at any time. It did not therefore interpose any obstacle to the payment of the debt by the surety, and when he could have proceeded against his principal.” And in Caller v. Yivian, et al. 8 Ala. Rep. 903, we held that there was no obligation to active diligence on the part of a creditor in the collection of his debt— he may employment of coercive measures as long as he e, the discharge of a regular levy may be produc^H^HHry to the surety, and so in most cases would Bl^H^^missal of a suit, or the neglect to commence one, yet, unless the holder of a security by valid contract give day to the principal, the surety is not discharged. [See [528] also 4 Port. Rep. 61; 8 Id. 108; 8 Ala. Rep. 759.] These decisions show, that the mere gratuitous indulgence of D. Sawyer b.y the plaintiff, in directing the sheriff not to proceed on his execution, did not discharge the intestate from liability on the note. The act of 1837, (Clay’s Dig. 326, § 76,) which has been cited for the plaintiff in error, has no application to the case at bar. That enactment provides that all notes, bonds or bills payable to any person or bearer, or to bearér only, shall be sued in 'the name of the person only, to whom the same may be expressly made payable, and no one else but the payee or his indorsee or personal representative shall maintain an action thereon. The title of the act perhaps indicates its purpose, though its scope and operation may be still more extensive. But it is needless to say more on this point, as it is most obvious from the terms employed, that it does not extend to blank indorsements, or where the indorser directs the contents of assignable or negotiable paper to be paid to the bearer, without indicating him by name. If the note itself was admissible under the declaration, what we have said will suffice to show that there is no error in the charge given or in those denied. The remaining question then to be considered is, whether the variance of the note offered in evidence from that described in the declaration, is such as required its exclusion. The declaration describes a note for $800, dated the 25th April, 1838, and payable on the 25lh December next thereafter, while that set out in the bill of exceptions as having been laid before the jury is for the same amount, dated and payable at the same time “with interest from the date.” This, in our judgment, is a clear variance. The effect of the note de'clared on, is to draw interest after its maturity, if the makers failed to pay it — but interest on the note produced will be calculated not merely as a consequence of default in its payment, but in virtue of the express contracUAgmjffie day it purports to have been made. It is however insisted for the defendant^^^^^Kat as it does not appear the variance was express]yJ^MH!r out in the objection to the admission of the note, it should not be noticed in this court. ■ The bill of exceptions distinctly states [529] that the defendant objected severally to the admission of the note and indorsement. If the court did not perceive the objection to the note, or it was not particularized, it should not have been overruled in limine, as it was well taken. Where counsel make a general objection to the admission of written evidence, and refuse to specify it when required by the court, or state one that is insufficient, then perhaps an .appellate court would not give to the party the benefit of it, although he might have shown such a discrepancy between the proof and allegation as should have induced the court to allow his objection. For the error in the last point considered, the judgment is reversed and the cause remanded.