Rose v. Park Bank

20 Ind. 94

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Per Curiam.

Suit by the Park Bank, of New York, the holder of a promissory note, against Rose, the maker, and Walker and Early, indorsers.

The note and indorsement read thus:

$6,000. Laporte, Indiana, September 24, 1858.

Sixty days after date, I promise to pay to the order of Samuel Burson 6,000 dollars, at 'the Bark Bank, New York, value received. D, G-. Rose.

Indorsed: Samuel Burson, IF .7, Walker.

Pay Park Bank, John Early.

The evidence shows that Burson is dead; that he and Walker indorsed the note at Laporte, Indiana, but that Early, at least, the Court might infer so, indorsed the note in New York.

The only diligence used for the collection of the note from the maker was demand, protest, &c.

The law of New York governed this note as to Bose and Early, and the law of Indiana as to Burson and Walker. The latter two could not be sued till-after suit against the maker, or a sufficient excuse for its omission. The judgment should be affirmed, with costs and one per cent, damages, as to Rose and Early, and reversed with costs, as to Walker. Rose v. The Thames Bank, 15 Ind. 292. See Walker v. Ocean Bank, 19 Ind. 247.

In determining the question upon the indorsement in this case, we have been governed by the rule laid down in Cook v. Litchfield, 5 Sandf. Rep. 330 which is this :

“ The liability of an indorser of a promissory note, or bill of exchange, is governed in all cases by the law of the place where the indorsement is made; and by the indorsement we are to understand the contract itself, not the mere act of writing the name upon the' back of the instrument. It matters not, when or where this may have taken place, since there is no indorsement, binding as a contract, until the note or bill is transferred to a third person, with the intent of enabling him to enforce its payment. The place of this effectual transfer, is, therefore, the place of the contract, and the law which there prevails governs its construction.”

The judgment is affirmed, with costs and 1 per cent, damages, as to Hose and Early, and reversed with, costs as to Walker.

Bradley Sy Woodward and Colerick $ Jordan, for the appellants. John B. Niles, for the appellee.