11 Ky. 290 | Ky. Ct. App. | 1822
Opinion of the Court.
THIS was an action of debt, brought by the Bank of Cynthiana against Long and Robertson, upon a note for $3000, executed by them to William Brown,
Several questions are made by the assignment of error. The point which was principally relied on in argument, and the only one we deem material to be noticed, arises out of the demurrer to the declaration. It is contended, that the endorsement of the note declared on, to the defendants, released them and extinguished the debt; and, therefore, it is inferred that the plaintiffs had by their declaration shown no cause of action.
1. As it regards this point, it is immaterial, we apprehend, whether the note be considered as an ordinary note for the payment of money, or as possessing the character of a bill of exchange. The same principles must apply to it in both cases; and, in either case, the endorsement of the note to the defendants must operate as an extinguishment of their obligation to pay it; for by the endorsement to them, they became its proprietors, and they could not be bound to themselves. Nor could the obligation, thus extinguished, be resuscitated by the endorsement and delivery of the note by them to the bank; for, in general, when an obligation is once extinguished, it cannot be revived. A new obligation, of the same nature and extent, may indeed be created ; but this could only be done in the same way in which the original obligation was created. Even an endorsement of the note to Brown,
2. The court, therefore, erred in not sustaining the demurrer to the declaration, and for that cause the judgment must be reversed. As, however, it is probable that the endorsements upon the note, at the time it was negotiated in the bank, were in blank, and the names of the defendants placed upon the note with a different view from that of having it endorsed to them, the circuit court ought, we think, if upon inquiry such should appear to be the fact, to permit the plaintiffs, in case they should make the application therefor, to strike out the endorsement to the defendants, and amend their declaration accordingly, upon the payment of costs.
The judgment must be reversed with costs, and the cause be remanded, for new proceedings to be had, not inconsistent with the foregoing opinion.