Fernon, Indorsee of Lynch v. Farmer's Adm'r

1 Del. 32

Opinion

Plff. proved the execution of the note and the indorsement to him, and a promise, by the deft's. intestate, after the indorsement, to pay the note to plff.

Hamilton, for deft. moved a nonsuit.

The note declared on is a note payable to Thomas Lynch, or order. The note proved, is payable to Thomas Lynch, but not to his order. This is a fatal variance.

Bayard suggested that the words "or order," might be stricken out without affecting the instrument; if so, it is mere surplusage.

Wales replied, that is was of substance and material. Chittyon Bills, 140.

The question was, whether the words "or order" were necessary to make the note negociable, and the court being of that opinion,

Nonsuited the plff.