Gibson v. Powell ( 1841 )

Turner, J.

stated the case, and delivered the opinion of the court.

We are of opinion that the court below erred in sustaining the demurrer to the plea. It is not material on what part of the paper, on which a negotiable" note is written, the name of an indorser appears, if he is an indorser. In this case, the fact admitted by the demurrer is, that Gibson was the payee, that he passed the note to the defendant, Powell, and indorsed it. And the defendant, Powell, on the writ which issued in the case, described the note as made by O. K. Brown, and indorsed by defendant, Gibson. (In the declaration he states it differently.)

The liabilities of a maker and indorser of a note are very different; and the facts relied on by the defendant below were pleaded, and being confessed, are a bar to the action. Then, as to the charge of the court, the evidence stated in the bill of exceptions, if believed by the jury, was also conclusive in favor of the defendant below, to wit: that the note was indorsed in the course of trade, by Gibson to Powell, and that it was received by Powell, not as the joint note of Brown and Gibson, but as a note (as it purports to be in the singular number,) made by Brown, payable to Gibson.

The judgment is reversed, and venire facias de novo awarded.