38 Ala. 389 | Ala. | 1862
The -special .count of the complaint alleges, that the defendant endorsed and delivered to tbe plaintiff a note made by a third person, payable fin bank to the plaintiff; that it was protested for non-payment, and that notice thereof was given to the defendant. From the facts thus alleged a right of action in favor of the plaintiff-results. The'endorsement is an irregular one, made by a person not a party to the instrument. Whatever may be the decisions in other countries, the law is settled in this State with respect to such endorsements, that, unexplained, they impose a liability in favor of the person ■to whom the endorsement is made, against the endorser, which is strictly analogous to the liability upon a regular endorsement. — Milton v. De Yampert, 3 Ala. 648; Jordan v. Garnett, 3 Ala. 610; Hall v. Chilton & McCampbell, 3 Ala. 633 ; Hullum v. State Bank, 18 Ala. 805 ; Tiller v.
The decision is McInnis v. Rabun, (1 Porter, 386,) is not opposed to our statement of the law. The suit in that case was by the payee of a note, for the use of- others, against one who had made an irregular- endorsement. The declaration contained no averment, as the complaint here does, that the endorsement was made do the payee; and therefore the declaration could not have been regarded as showing a right-of action in the plaintiff. It was-ior this failure to show adiability to the plaintiff that the declaration was held bad.
We have a rule of practice, adopted in 1853, which is as follows; “When an action is-brought under section 2129 of tho Code, by any transferree,-assignee, or endorsee, the plaintiff shall not be required to prove bis interest in the cause of action, unless the same is put in issue by plea verified by affidavit.” — 28 Ala. 8; 31 ib. 5. Section 2129 requires ■ suits, upon such contracts as that which is the ca-use of. action in this ease, to be brought in the name of' the party really interested. — Crook v. Douglass, 35 Ala. 693. This is, therefore, an action under section 2129 of ' the Code, and can only bo brought in the name of the party really interested. It is also an, action by an endorsee ; for, to constitute an endorsement, it is- not indispensable that the writing should effect a transfer of the bill or note, Seabury v. Hungerford, 2 Hill, (80,) 83; Dean v. Hall, 17 Wend. 214, 216, 217; Story on Prom. Notes, § 133; Ala. & Miss. River Railroad v. Sanford, supra. Tho endorsement is certainly irregular, because it was not made by a party to the note; but iffis not on that account the loss an endorsement.. The plaintiff is an endorsee, bringing an action “under section 2129 of the Code;” and, falling precisely, within .the rule of practice above copied, is not required “ to prove bis interest in the cause of action, unless the same is put in issue by plea verified by affidavit.” If tlie plaintiff were required, in the absence of a sworn plea, to show that he was the person to whom a blank
Tbe demurrer to the evidence was ¡properly overruled, and the judgment must be affirmed.