leave to file another plea, alleging that the note was obtained from him by the fraudulent connivance of the plaintiff and Johnson, his co-defendant, who represented to him that the note was payable unconditionally five years after date; that he was not a very good scholar, and that it was written in a hand which he could not readily read, &c. The Court refused permission to file this plea, which is assigned for error. The defendant was not injured by a refusal to permit this plea to be filed, because it was no defence to the action, and would have availed nothing had it been allowed. For aught that appears, he had received, with Johnson, the consideration of the note, and the misrepresentation was of a matter apparent to the senses. The deed of one who can not read will not be avoided for that reason, unless he request that it be read to him. Hallenbeck v. Dewitt, 2 Johns. 404. Had the plea shown that the defendant was a surety, and had the circumstances of fraud been such as could not by reasonable diligence have been detected, it might have been sufficient. Besides, the facts were admissible in evidence under the general issue. The issue was tried by jury. Verdict for the plaintiff for the amount of the note and interest. Motion for a new trial overruled and judgment. An objection is urged to this judgment that the action was premature. It was formerly held, that debt would not lie for money payable in instalments, until the last was due. Co. Litt. 47, 292, b.-3 Co. 22, a. But assumpsit has always been held to lie for the recovery of money payable in instalments, before the whole was due. 1 Chit. Pl. 97. This is not an action, however, for the recovery of an instalment; it is for the recovery of the whole debt, in consequence of the non-payment of an instalment of interest. If A. makes a bill to B. for the payment of £20, viz., £10, &c., and hereby covenants and grants with B. that if he makes default in either of the said payments, he will then pay what of the whole shall be unpaid, after default of the first day, debt lies for the whole. Bac. Ab., tit. Conditions, P. 3, p. 669, note a. May Term, 1855. AUSEM V. BYRD. May Term, 1855. CECIL V. Mix. It is further insisted, that if the plaintiff was entitled to judgment for the whole, it should have been with leave to take out execution only as the amounts became due. We have no such practice. Such a practice prevails in England, upon obligations like the present, but it is under the statute of 8 and 9 Wm. 3, c. 11, s. 8, which is not in force in this state. A similar practice prevails, we think, in Pennsylvania, and perhaps in other states, under special statutes, but it is a proceeding unknown to the common law. We can not notice the objection taken to the verdict as being against evidence. There is no statement in the bill of exceptions that it contains all the evidence given at the trial. Per Curiam.-The judgment is affirmed, with 3 per cent. damages and costs. J. R. Coffroth, for the appellant. J. R. Slack, for the appellee. Friday, CECIL v. Mix and Others. A blank indorsement of a note, in the absence of evidence showing when it ERROR to the Tippecanoe Circuit Court. STUART, J.-Assumpsit on a promissory note averring, as to Mix, that he became one of the makers by signing his name on the back. The averment is, that on the day and year on which the note was made, at, &c., the defendant Mix signed his name in blank on the back, and that so signed the note was delivered to the payee, John P. Baker. Baker subsequently assigned to Cecil. Trial by the Court. Finding and judgment for the defendants. The evidence is all properly embodied in the record. The evidence of John P. Baker, the payee, introduced as a witness for and released by Cecil, so far as it bears on this point, is brief, viz., "that he was the payee of the note; that Thompson and Rowan owed witness a debt for that amount for lumber; that the witness, living in another county, sent to one Halliday, of Lafayette, to secure the debt for him; that Halliday returned the note to witness, with the names of Thompson and Rowan and said James Mix, the same as they now appear thereon. The note and indorsements read thus, viz.: $259. Lafayette, February 7, 1849. Four months from date, we promise to pay John P. Baker two hundred and fifty-nine dollars, for value received, without benefit of valuation or appraisement laws; negotiable and payable at Lafayette branch, state bank of Indiana. [Signed] Thompson and Rowan." "Indorsed, James Mix, John P. Baker." This was all the evidence bearing on that question. The only question presented is as to the liability of Mix. Was it primary or secondary? Was he one of the makers of the note or only an indorser? The authorities on this question were fully examined by judge Dewey, in Wells v. Jackson, 6 Blackf. 40. According to the Massachusetts authorities, the liability of Mix would be that of surety on the original contract, as much as though his name had been on the face of the note; but the presumption is open to explanation as to the real intent of the indorsement. In New-York such indorsement is held to be prima facie evidence of secondary liability only, unless it be shown by other evidence than the mere indorsement, that his object was to give the maker of the note credit with the payee. In regard to negotiable paper, this Court, in the case cited, inclined to the latter principle. "The deduction," says the Court, "which we draw from these authorities is, May Term, 1855. CECIL V. Mix. 1855. CECIL Y. MIX. May Term, that the blank indorsement of unnegotiable paper, made at the date of the contract, and unexplained by extrinsic testimony, confers upon the payee the authority to hold the indorser liable on the original contract as a surety; and that a similar unexplained indorsement of negotiable paper, renders the indorser liable only as indorser, with the ordinary rights and privileges incident to that character; but that, in either case, the liability intended to be assumed may be explained, and the prima facie responsi bility be changed to one of another kind." Adhering to the principles thus established, it but remains to inquire how they affect the liability of Mix. There are two circumstances which seem to define the position of Mix beyond controversy. It is shown in evidence that when the note was delivered to the payee, and before the latter had assigned it to Cecil, Mix's name was indorsed thereon. There is no date to the indorsement, and the presumption therefore is, in analogy to assignments, that it was done at the date of the note. There is nothing in the case to repel this presumption. This blank indorsement of a note negotiable under our statute, R. S. 1843, p. 576, s. 6, (and much more under the authority of Wells v. Jackson, if the instrument were not negotiable,) made at the date of the note and before its delivery, sufficiently indicates, we think, the intention of Mix to give the other makers credit with Baker, the payee. The other circumstance is closely connected with the time and manner of signing. It is the position of his name. The note and indorsements are set out in the record; as to the latter thus indorsed, "James Mix, John P. Baker." In the case of Wells v. Jackson, the principles of which we adopt in the determination of this case, Jackson's name stood the last of three indorsers. And the Court lay stress upon this fact, as a ground of presumption that he had "placed his name on the bond in the character of an ordinary indorser-looking to the responsibility of those whose names preceded his, including the payee and maker." Here Mix's name stands first on the back of the note. Taking these two circumstances together, the time 1855. DAVIS the indorsement was made and the position of the indorse- May Term, We are clearly of opinion that the evidence, in the light of the authorities cited, shows the liability of Mix to be of this primary character, and that therefore the judgment should be reversed. Per Curiam.-The judgment is reversed with costs. G. S. Orth and E. H. Brackett, for the plaintiff. V. Cox. DAVIS v. Cox and Others. Where the land intended to be embraced in a mortgage is misdescribed, the mortgagee must have the instrument reformed before he can proceed to foreclose. Bill for foreclosure against subsequent purchasers. The land intended to be embraced in the mortgage was misdescribed therein but correctly described in the deeds to such purchasers. The bill did not allege the misdescription nor seek to have the mortgage reformed; but the evidence showed the misdescription and tended to prove that the purchasers had knowledge of it when they bought the land. The Supreme Court ordered the bill to be dismissed without prejudice, &c. ERROR to the Bartholomew Circuit Court. STUART, J.-Bill in chancery by Davis against Cox, the mortgagor, and Wood, Larkin and Wood, subsequent purchasers, to foreclose a mortgage. The land as described in the bill, is the south-west half of the south-west quarter of section fifteen, in township nine, of range seven east, &c. VOL. VI-31 |