Sparhawk v. Broome

Yeates J.

I concur in the opinion which has been de+ livered by die Chief Justice. The contest here is not between the plaintiffs and the assignees, who are interested for the general creditors, but between the plaintiffs and the bankrupt himself, who has received value, who endeavours to avoid his liability as indorser of the notes, upon the ground of his having committed a fraudulent act.

As between the indorsee and the drawer of a promissory note, it is incumbent on the former to prove a full and com-, píete right to the note; but the same is not necessary in a, suit by the indorsee against the indorser; for as between them, it is an entire new contract,, guaranteeing the payment of the note by tb.e drawer, when it comes to maturity, and the handwriting of the indorser, and due notice of the -non-payment of the note, need only be proved. The decisions on . the responsibility of indorsers of notes .given by infants, or - which even have been proved to be forged, furnish striking illustrations of the correctness of the principle.

It is wholly unnecessary to anticipate at this time, whether, if the bankrupt had a beneficial interest in these notes, his assignees might not recover from the plaintiffs in trover, or the amount of the monies hereafter received from the defendant. It is sufficient to say, that the liability of the defendant, not attaching- until above two months after the date of his certificate of conformity, the debt could not be proved under the commission, nor was barred thereby. I am therefore of opinion, that judgment be entered for the plaintiffs.

Brackenridge J. concurred.

Judgment for plaintiffs.