236

10. Where a party is shown to have signed
a note as a surety, he may be charged as
Ibid.
a joint maker.
11. E., as trustee of Indian Creek Township,
having obtained a judgment against F. and
G., upon which an execution had been is-
sued and a levy made, took from them
and others, as their sureties, a note for the
amount of the judgment, conditioned that
the sale on the execution should be post-
poned until the maturity of the note, and
that payment of it should satisfy the judg
ment. Held, that the trustee, being in-
trusted by statute with the management
of the pecuniary concerns of the township,
had power to make the agreement.-Phil-
ips et al. v. Eust, Trustee, &c.,

254

15. The expression, "chartered bank," was
inadvertently used in Mix v. The State
Bank, 13 Ind. 521, in stating what notes
are put by the statute on the footing of
inland bills of exchange.
Ibid.

16. Where the names of indorsers appear
upon a note, without any date, the in-
dorsements will be presumed to have been
Ibid.
made at the date of the note.

17. Where, at the time of the execution of
a note not governed by the law merchant,
but still negotiable, third persons place
their names on the back of it, in the ab-
sence of the prior indorsement of the payee,
their liability is, prima facie, that of in-
dorsers; and there would be no variation

in this rule when applied to notes nego-
Ibid.
tiable by the law merchant.

Where indorsers place their names upon
the back of a negotiable note at the time
of its execution, in the absence of the prior
indorsement of the payee, perhaps parol
evidence is admissible to rebut their prima
facie liability as indorsers, and show it to
be that of makers; but where the payee
first indorses the note, evidence is not ad-
missible to rebut such prima facie liability
Ibid.
of the subsequent indorsers.

19. Suit by the assignee of a promissory
note against his assignor, alleging the in-
solvency of the maker. A judgment had
been obtained on the note against the ma-
ker, and executions returned nulla bona,
but due diligence had not been used in
bringing the suit. Answer: that dili-
gence had not been used against the maker
of the note, who, long after the time
when a judgment might have been ob-
tained against him, had property subject
to execution. The executions issued on
the judgment against the maker, and the
returns of the oflicer were offered in evi-
dence, and objected to by the assignor, on
the ground of irrelevancy. Held, that as it
does not appear but that the judgment on
which the executions issued was given in
evidence without objection, and as the exe-
cutions and returns might tend to show
insolvency at a given, though immaterial,
time, the Court can not say the evidence
did any harm.-Dawson v. Walls, 269
20. As the evidence is not in the record,
this Court can not say that any thing was
shown tending to impeach the returns,
and if not, they might, when legitimately
in evidence, be taken as conclusive, in the
given case.
Ibid.
Suit upon a promissory note. Answer:
that the note was given to the payees
thereof, at the request of one A., in settle-
ment of an affair of bastardy, she, the said
A., being then pregnant with a child be-
gotten by one of the makers of said note;
that a large sum, to-wit, $500, had already
been paid, and that said bastard child died
at birth. Held, that the mother, being
pregnant at the time of the execution of
the note, had then a present right of action,
and her promise not to bring the action was
a good consideration for the note, which the
death of the child did not in any degree
affect.-Harter et al. v. Johnson,

21.

271

22. Where an assignee takes a note upon
the representation of the maker that it will
be paid, or is good, the latter is estopped
to defend against the payment of the note.
-Wright v. Allen,
284

23. The possession of a note by the payee,
is prima facie evidence that he is the owner
of it, although there may be on the note
a special indorsement of it by him to a
third person; and he may, if he thinks
proper, strike the name of such indorsee
from the note.-Mendenhall et al. v. Banks,

284

24. Suit upon a promissory note. Answer:
that the note was given for a part of the
purchase money of a saw mill, and the as-
signment of a subscription for the purpose
of rebuilding the same; that the vendor
represented that the mill and machinery
were perfect, and the subscription valid,
and worth $300; that in fact, the mill,
machinery and subscription were of no
value to defendant, and that the note sued
on was the last one given. Held, that the
answer was bad, on demurrer.-Thomp-
son v. Voss,

297

25. Where promissory notes are pleaded as
a set-off, a replication denying the de-
fendant's title to the notes, and particularly
setting out the facts showing the title to
be in another, is good.-Reilly et al. v.
Rucker, Executrix, &c.,
303

26. Where a lease of land is for a term
within the statute of frauds, and for that
reason required to be in writing, and the
lessee executes notes to the lessor for the
rents, and takes possession of and occu-
pies the premises leased during the term,
the question whether the contract could
have been enforced if either party had re-
fused to perform it before the expiration |
of the term, is not involved, and the lessee
is liable to pay the notes.-Gibson et al. v.
Wilcoxen,
333

promise could not have been intended to
induce the purchase, even though it should
appear that the note was not, in fact, pur-
chased until afterward.
Ibid.

29. Suit against the owners of a steamboat
upon certain bills and notes made and ac-
cepted by the master, and purporting to
have been given for the use of the boat,
for insurance, &c. Held, that prima facie
the master had no authority to bind the
owners to the payment of the bills or
notes.—Holcroft et al. v. Wilkes, 373
30. He had no right as master, though him-
self a part owner, to insure for the other
joint owners.

31.

Ibid.

Suit against the makers and indorsers
of a promissory note, made, and payable,
in Illinois. Held, that as the note was
not payable to order or bearer in a bank
in this State, no cause of action was shown,
under our law, against the indorsers.—
Brown v. Bunn,

406

344

28. But where the maker is informed that
the note has been already purchased, and
promises the assignee to pay it, he is not
estopped to contest its validity, as the

Suit by an assignee upon a promissory
note. The complaint averted that the
defendant executed the note to the payee,
who indorsed it to the plaintiff. Answer:
That the indorsement of the note was
without consideration, and for the purpose

of avoiding answers to interrogatories, and p
that the plaintiff had no interest in the
note. Held, that the legal conclusion
from the averments of the complaint, was
that the legal ownership of the note was
in the plaintiff, and it was not enough for
the defendant to controvert this legal con-
clusion, without specially controverting
the facts upon which it rested, or showing
other facts inconsistent there with; as that
the real interest remained in the payee,
or had passed from the plaintiff to a third
person.-Eller v. Smith,
466

37. Suit by the State Bank of Indiana, for
the use of the Branch at New Albany,
upon a promissory note. Before the
determination of the suit, the charter
of the State Bank expired; but before
that time, the Bank of Salem had become
the purchaser of the note sued on. A
supplemental complaint was filed, show-
ing the transfer, and alleging that the note
was given for the purchase money of a
certain lot, sold by the State Bank to the
defendant, and that a deed has been
tendered before suit was brought, which
had been handed over to the Bank of
Salem. Held, that the right to keep up
and make good the tender, by a delivery
of the deed, passed to the Bank of Salem
as an incident to the assignment of the
note.-The Bank of Salem v. Caldwell,

469

38. Suit upon notes made in Ohio, and
payable with 10 per cent. interest. Judg-
ment for the amount of the notes with
the stipulated interest. Held, that as the
notes were payable generally, they were
payable everywhere, and not specially at
the place of residence of the makers.-
Engler et al. v. Ellis,
475

39. If the notes were payable in this State,
they would still be good for the stipulated
interest, unless that rate was prohibited
by the law of Ohio, which was not made
to appear.

Ibid.

40. Where the indorsee of a promissory
note alleges, in his complaint, that the
note was indorsed to him by the payee,
and sets out a copy of the note, with a
blank indorsement, he may, on the trial,
fill up the indorsement, or may recover
without filling it up.-Moore v. Pendleton
et al.,
481
41. Suit by an indorsee of a promissory note

against a remote indorser, alleging the
insolvency of the makers. Answer: that
at the time of making the indorsement,
defendant took from his indorsee a writ-
ing, showing that the note was assigned
without recourse. The Court instructed
the jury that a party receiving a negoti
able note or bill of exchange, before
maturity, in good faith, in the usual
course of business, and without fraud, is
not bound by equities which exist between
the parties of which he had no notice.
Held, that the instruction was erroneous.
March et al. v. Sheldon,
491

3. Information in the nature of a quo war-
ranto, against a plank-road company,
charging a forfeiture of its franchises.
The information did not give the date of
the organization of the corporation, or
show under what statute it was organ-
ized and acting. Held, that when a cor-
poration does, or omits, acts which amount
to a forfeiture of its charter, or exercises
powers not conferred by such charter, an
information may be sustained against it.
-Danville, &c. Plank-road Co. v. The
456
State ex rel., Sc.,