Elmendorf v. Shotwell

Supreme Court of New Jersey

Elmendorf v. Shotwell

15 N.J.L. 153

DecidedSeptember 15, 1835

StatusPublished

This text of 15 N.J.L. 153 (Elmendorf v. Shotwell) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Elmendorf v. Shotwell, 15 N.J.L. 153 (N.J. 1835).

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Opinion

Ryerson, J.

In this case the defendant has filed a general demurrer to the plaintiff’s declaration, and the plaintiff has joined in demurrer. The matter has been submitted to the court without argument. The declaration itself, seems framed according to principles which were sanctioned in this court, in the case of Beardsley v. Southmayd, 2 Green, 534. The action in that case was by the payee, and in this by the indorsee of a promissory note: and the only new question which is raised by the demurrer, respects the allegation of the transfer.

The declaration after alleging in proper form, the delivery of the note to the payee, adds, “ who then and there indorsed the same to the plaintiff, and the defendant then and there promised the plaintiff to pay him the amount of the said note, according to the tenor and effect thereof, and the said indorsement.” This short method of setting out the transfer of the note, I suppose, has occasioned this demurrer. It is more common in practice, to state specially the contents and subscription of the indorsement, and the delivery to the plaintiff. But all this is as well and fully understood (when the indorsement is in common form,) from this brief statement as it would be by any other. Persons who understand the nature of this commercial instrument, and the mode of transferring it, comprehend fully what is meant; [154]*154and I cannot perceive the utility of multiplying words, without any elucidation, extension, or restriction of the meaning. This mode of allegiiig the transfer, is not altogether new. It is to be found in practical books of reputation; though I have no recollection of any case, whei e it has been formally sanctioned by adjudication.

The declaration also omits the allegation of notice to the defendant, of the transfer of the note. But at this day, I do not suppose the court would require any bind of proof of such notice. The allegation of the fact therefore, is worse than useless.

In my opinion the plaintiff must have judgment.

Hornblowek, O. J. and Ford, J. concurred»

Judgment for plaintiff.

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Ryerson, J.

In this case the defendant has filed a general demurrer to the plaintiff’s declaration, and the plaintiff has joined in demurrer. The matter has been submitted to the court without argument. The declaration itself, seems framed according to principles which were sanctioned in this court, in the case of Beardsley v. Southmayd, 2 Green, 534. The action in that case was by the payee, and in this by the indorsee of a promissory note: and the only new question which is raised by the demurrer, respects the allegation of the transfer.

The declaration after alleging in proper form, the delivery of the note to the payee, adds, “ who then and there indorsed the same to the plaintiff, and the defendant then and there promised the plaintiff to pay him the amount of the said note, according to the tenor and effect thereof, and the said indorsement.” This short method of setting out the transfer of the note, I suppose, has occasioned this demurrer. It is more common in practice, to state specially the contents and subscription of the indorsement, and the delivery to the plaintiff. But all this is as well and fully understood (when the indorsement is in common form,) from this brief statement as it would be by any other. Persons who understand the nature of this commercial instrument, and the mode of transferring it, comprehend fully what is meant; [154]*154and I cannot perceive the utility of multiplying words, without any elucidation, extension, or restriction of the meaning. This mode of allegiiig the transfer, is not altogether new. It is to be found in practical books of reputation; though I have no recollection of any case, whei e it has been formally sanctioned by adjudication.

The declaration also omits the allegation of notice to the defendant, of the transfer of the note. But at this day, I do not suppose the court would require any bind of proof of such notice. The allegation of the fact therefore, is worse than useless.

In my opinion the plaintiff must have judgment.

Hornblowek, O. J. and Ford, J. concurred»

Judgment for plaintiff.

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Bluebook (online)

15 N.J.L. 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmendorf-v-shotwell-nj-1835.