16 Ind. 406 | Ind. | 1861
Suit by Bunn against Howard, Jones and Severson, as makers of a promissory note payable to Bassett, and against Bassett and Brown as indorsers. The note was made, and also payable, in Illinois. It was indorsed by Bassett, the payee, to Brown, and by Brown to the plaintiff. Where the indorsements were made, does not clearly appear, but the inference is that they also were made in Illinois. Process was not served upon Bassett, and judgment by default was taken against the other defendants.
Brown alone appeals, and makes the point that the complaint states no cause of action against him; and we think this objection is well taken. The complaint states no facts which would render Brown liable as indorser, under our law, governing the liability of indorsers of paper not governed by the law merchant. Such notes only are governed by the law merchant, as are payable to order, or bearer, in a banle in this State. 1 B. S. 1852, § 6, p. 318. Hence, if the indorsement is to be governed by our law, as having been made in this State, (vide Hunt v. Standard 15 Ind. 33,) there are no facts alleged sufficient to charge the indorser. If, on the other hand, the indorsement was made in Illinois, and to be governed by the law of that State, such law should have been pleaded, and relied upon as governing the case, which was not done. Vide, Shaw and another v. Wood and another, 8 Ind. 518; Wilson and another v. Clark, 11 Ind. 385.
The judgment against Brown is reversed, with costs. Cause remanded, &c.
