Cushing, Assignee, v. Mendall

*Cushing, Assignee, v. Mendall. Assignment—Pleading.—Debt by the assignee against the maker of a promissory note. The declaration set out the assignment as follows: “ The said S (payee) afterwards, and before the payment of said sum of money in said promissory note specified, viz., on, &c., at, Ac., indorsed said note by indorsement thereon under his hand, and then and there delivered the same to the plaintiff, yet the defendant, &c.” Held, on general demurrer, that the declaration showed with sufficient certainty, that the note had been assigned to the plaintiff. ERROR to the Jefferson Circuit Court. C. Cushing and J. G. Marshall, for the plaintiff. M. G. Bright, for the defendant. [MAJORITY — BhAOKFOiiD, J.] BhAOKFOiiD, J. Debt by Cushing, assignee of a promissory note, against Mendall the maker. The declaration, after setting out the making and delivering of tbe note by the defendant to one Isaac IT. Southwick, &c., contains the following averment, viz.: “ And ,the said Isaac II. Southwick, afterwards, and before the payment, of the said sum of money in said promissory note specified, viz., on the day and year aforesaid, at the county aforesaid, indorsed the said promissory note by indorsement thereon under his hand, and then and there delivered the same, to the said plaintiff; yet the defendant, &e.” General demurrer to the declaration, and judgment for the defendant. The objection made to the declaration is, that though it alleges the note to have been indorsed, it does not say that it was indorsed to the plaintiff; and, no doubt, if there be that objection, the declaration is bad. But we think the declaration may be understood as alleging that the note was indorsed and delivered to the plaintiff’; or, in other words, that it was both indorsed to the plaintiff and delivered to him. Per Curiam.—The judgment is reversed with costs. Cause remanded, &e.