Hibernia Bank & Trust Co. v. Smith

42 So. 345 | Miss. | 1906

Calhoon, J.,

delivered the opinion of the court.

When the holder of a note sues on it he need not prove the endorsement signature any more than the signature of the maker of it unless denied by plea under oath. Kendrick v. Kyle, 78 Miss., 279. The declaration is good enough. The “allegation of endorsement imports delivery.” 8 Cyc., 119 (9 and note). The plaintiff below, when he produced the paper endorsed, must be held properly in possession imtil the contrary is shown. Because the note was made payable at a particular bank did not necessitate a demand of payment there. Washington v. Planter's Bank, 1 How., 230; Cook v. Martin, 5 Smed. & M., 393; 4 Ency. Law, 393; 28 Am. Dec., 335. Undoubtedly, however, if pleaded that the money was there and remained there for payment, and so proved, it would be treated as a tender and stop interest and costs. When plaintiff offered the note, with its endorsement, he made out a prima facie case, and, we think, it was error to exclude.

Reversed and remanded.