Hodges v. Adams

The opinion of the court was delivered by Bennett, J. This case comes before the court upon demurrer to the declaration. It is not alleged, that the defendant, as indorser of the note, ordered its contents to be paid to Wm. P. Briggs or his order; and hence it is claimed in argument, that the indorsement is a restrictive one, not impowering Briggs to negotiate the note to the present plaintiff. If the indorsement, as set up in the declaration, is to be restricted to Briggs, it is quite clear the plaintiff could not maintain any action against the maker of the note ; and perhaps he would not stand upon any better ground, as against this defendant, as indorser. But we think the indorsement to Briggs cannot be treated as restrictive. The case of Moore v. Manning, Com. Rep. 311, was decided upon demurrer, and was in all points identical with the present, except in that case the action was against the maker of the note. In the case of Acheson v. Fountain, 1 Str. 557, the bill was payable to Abercrombie, or order,, and indorsed thus, “Pay the contents to Louisa Acheson;” b.ut the declaration alleged the indorsement to have been made to Acheson, or order; and it was adjudged, that there was no variance. The court said, it was declared on according to the legal effect of the indorsement, and that Acheson was authorised by it to make an indorsement over. ' To tire same effect is the .case of Edie et al. v. East India Company, 2 Burr. 1216. The law interprets the indorsement to be in the same manner, as the note, or bill, shall have been drawn, unless restrictive words are used. If Briggs had, by virtue of the indorsement to him, the right to negotiate th.e note to th.e plaintiff, it is difficult to see why the defendant is not li,able, as indorser, to the plaintiff. It is said in argument by the defendant, that, though it may be true, that the plaintjff may maintain an action on this indorsement against the maker of the note, y.et the liability of himself, as indorser, pan only be enforced by Briggs, inasmuch as there are no terms of negotiability in the indorsement. The fallacy in this argument is, .that the words of the indorsement are interpreted by the negotiable [77] character of the note, and the note, as against the maker, being negotiable, the contract between the defendant as indorser and Briggs as indorsee is equally negotiable, though it was not indorsed to him or order. The legal effect is the same, as if it had been so indorsed. The judgment of the county court is affirmed,