Rose et al. v. The Park Bank.

suit, and, in sequence, the title acquired by the defendant after its commencement can not, in the absence of the plaintiff's assent, be allowed to enure to him, either in bar of the action or in mitigation of damages. It follows, the plaintiff having gained no title by way of estoppel, the actual amount of consideration which he paid, with interest, is the correct measure of damages.

Per Curiam.-The judgment is affirmed, with five per cent. damages and costs.

B. B. Moffatt, for the appellant.

D. W. Voorhees and J. E. Risley, for the appellee.

ROSE et al. v. THE PARK BANK.

PROMISSORY NOTES.-LEX LOCI.-Where a note is made in Indiana by A, payable to the order of B, in the city of New York, and is indorsed by B in the latter place, and is then indorsed by C and Din Indiana, the liability of A and B, on such note, is governed by the law of New York, and that of C and D by the law of Indiana, and on such note and D can not be sued until A and B have been sued, or a sufficient excuse assigned for the omission to sue them.

APPEAL from the Laporte Circuit Court.

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 Sam

Rose et al. v. The Park Bank.

uel Burson 6,000 dollars, at the Park Bank, New York, value
received.
D. G. ROSE.

Indorsed: Samuel Burson, W. J. 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 Rose 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: 55als.2808.6. Λ

"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. dam

Gray et al. v. Dickey.

ages, as to Rose and Early, and reversed with costs as to Walker.

Bradley & Woodward and Colerick & Jordan, for the appellants.

John B. Niles, for the appellee.

GRAY et al. v. DICKEY.

PRACTICE.-A motion to set aside a judgment rendered by default, in the Court below, and an exception for the refusal to grant the same, should precede an appeal to this Court.

APPEAL from the Ripley Common Pleas.

Per Curiam.-This was an action by the appellee, who was the plaintff, against James W. and Malinda Gray, to foreclose a mortgage. The record avers that process, on the defendants, was duly served, &c.; that they were called, &c., and, failing to appear, were defaulted, and judgment by default was regularly entered against them. But no motion to set aside the default appears to have been made in the lower Court. The record contains no bill of exceptions, nor does it appear that any exception, in any form, was taken to the rulings of the Common Pleas. The cause is, therefore, not properly before us.

The appeal is dismissed with costs.
Edwin P. Ferris, for the appellants.

Brooks v. Berryhill.

BROOKS V. BERRYHILL.

Duress-ContrACT.-Where a man is arrested out of this State, upon criminal process sued out in another State, upon a charge of embezzlement, and is brought to this State, in the custody of an officer of such other State, and is taken to his wife, who resides here, and is the owner of real estate here, and she is induced, by his importunities, and the threats of the officer to take him back to such other State, and her desire to secure his discharge from imprisonment, to execute a mortgage upon her real estate, in which her husband joined, to secure the payment of the money alleged to have been embezzled by him, and such mortgage was executed by her unwillingly, such mortgage will be void, because it was executed under duress, the husband having been at the time held in illegal custody, by an officer of another State, under a writ there sued out, which was no justification to him here.

APPEAL from the Jefferson Common Pleas.

PERKINS, J.-Suit by Moses Brooks against Alexander S. Berryhill and Rebecca G. Berryhill, for the foreclosure of a mortgage. Complaint in the usual form.

Alexander S. Berryhill made default. Rebecca G. Berryhill, who is the wife of Alexander, was permitted to appear and defend in her own right, the mortgage being upon her separate property.

Her answer consisted of several paragraphs, but they set up, in substance, two grounds of defence: 1. A special non est factum, verified by oath. 2. Duress.

There was judgment below for Mrs. Berryhill. The facts are shortly these:

Alexander S. Berryhill was a clerk and salesman for Moses Brooks in Cincinnati, Ohio, while his family residence was in Madison, Indiana.

Berryhill became a defaulter, as clerk and salesman, to the amount of several hundred dollars. Mr. Brooks filed an affiVOL. XX.-7

Brooks v. Berryhill.

davit against him, in the Police Court of Cincinnati, for embezzlement, and procured a warrant for his arrest. He was arrested by Hazen, the Chief of Police of Cincinnati, and while under arrest, it was arranged between Brooks, Hazen and Berryhill that, if the latter would go to Madison, in custody of the officer, and procure a mortgage on a farm owned by his wife, called Beechwood, to secure the amount of his defalcation, he was to be discharged from further prosecution. The visit to Madison was made, the mortgage obtained, Berryhill was discharged, the affidavit and writ against him destroyed, the prosecution abandoned, and Berryhill then enlisted in the army and left for the South.

The above is a general statement. But it is proper that a more particular statement should be made of the evidence touching the manner in which the mortgage was obtained from Mrs. Berryhill. It appears to have been in the night of the 28th of January, 1860. The following is Mrs. Berryhill's testimony:

"She said that she was the wife of said Alexander S. Berryhill; that said mortgage was executed under the following circumstances, to-wit: On the evening of the execution of the mortgage, said Berryhill, who then resided at Cincinnati, came to her house and came up stairs to her room, and told her he was in difficulty with the plaintiff; that he wanted her to sign a paper which would relieve him of the difficulties; that she said to him she would do so, only that she could not make a mortgage on the said farm, Beechwood, the land described in the mortgage; that she thought that she could not mortgage said land; that said Alexander told her it was not a mortgage at all, and she relying on that statement, went down stairs and signed the paper then lying on the table in the room, without looking at it, or reading it, or being told what it was, or knowing what it was, only believ ing that it was not a mortgage, and that she would not have