Ranson v. Sherwood

26 Conn. 437 | Conn. | 1857

Hinman, J.

The nonsuit was properly ordered in this case. There was no evidence that the maker of the note was insolvent or unable to pay it when it fell due, except barely what arises from the fact that he provided no funds to pay it at the time and place where it was made payable, but suffered it to be protested for non-payment. And the holders made use of no diligence to collect it, except that they caused it to be presented for payment at the place of payment, when it fell due, and caused it to be protested for non-payment, and notice thereof to be given to the defendant, as if she was an ordinary indorser of a negotiable note payable to herself. The law applicable to the case was fully and explicitly laid down in the case of Perkins v. Catlin, 11 Conn., 213, after a review of all the authorities on the subject, and we can only repeat what was said in that ease, that “ by the common law of Connecticut, a blank indorsement of a note not negotiable, prima facie implies a contract on the part of the indorser that the note is due and payable according to its tenor, that the maker shall be of ability to pay it when it comes to maturity, and that it is collectible by the use of dué diligence.” It was also held in that ease that the indorsement of a negotiable note, indorsed in blank for the benefit of the payee, and not indorsed by him, was to be regarded in the same light as the indorsement of a note not negotiable, as subject to the same legal construction, and as imposing upon the payee the same legal diligence as if the note was not negotiable. The diligence imposed on the holder of indorsed notes not negotiable, and of negotiable notes indorsed by a third person who is not otherwise a party to them, has always been to sue the note by attachment as soon as if is due, unless the maker is insolvent. It follows from what has been said, that no recovery could be had upon the first and second counts in the declaration, bécause in those counts the defendant is treated as the maker and not as the indorser of the note in question. And upon the other counts no recovery could be had, because there was no evidence of the insolvency of the maker, and the holders of the note made use of no diligence to collect it of him. It did not therefore appear in any way but that the note would have been paid, or the payment of it secured, if the holders had used the proper diligence to collect it. . It has not been thought necessary to refer to any other of our numerous cases on the subject of indorsed notes of this description, as they were all brought together and most thoroughly examined in the case to which we have referred. And we had supposed that decision had finally settled any doubts that had formerly existed on the subject. The Massachusetts and New York cases cited have really no bearing on the question, as it has long been understood that our law upon this subject differs in many respects from that of those states, and the enquiry is what is our own law and not what is theirs. We do not find any error in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.