Bestor v. Phelps ( 1856 )

Catón, J.

This was an action by the assignees against the assignor of a promissory note. On the trial, the assignment on the note, by the defendant below, was admitted to be genuino; but it was objected that the execution of the note by the maker was not proved. The court overruled the objection, and admitted the note in evidence, which is now assigned for error. This, identical question was brought before this court by a person of the same name as the present plaintiff in error, in the case of Bestor v. Walker et al., 4 Gilman, 3, in which the court said: “ But there is no rule of law, and never has been, requiring the indorsee of a note, in a suit against the indorser of it, to prove the execution of it by the maker. The indorser, having negotiated and put it into circulation, exhibits a degree of assurance without a parallel, when he demands proof of its genuineness of the man to whom he has indorsed it. Neither reason nor law sanctions such a proceeding.” It is unnecessary for me t,o add any thing to the language of this court above quoted, to show that the decision of the court was correct.

The instructions asked and given as to when and what degree of diligence the assignee was required to use to collect the note of the maker, do but reiterate, the decisions of this court in numerous cases on the subject, which are perfectly familiar to most of the profession, and to which I do not feel called upon to refer particularly.

The judgment is affirmed.

Judgment affirmed.