Harter v. Ellis

¶1Debt by Philip Harter against Ellis and Ran-ún. The declaration sets out a promissory note made by the lefendants, by which they promised to pay one Isaac V. Harter u certain sum of money. General demurrer to the declaration sustained; and judgment for the defendants.

¶2This judgment is right. The declaration does not allege any assignment of the note by the payee to the plaintiff or to any other person. From clerical error, or some other cause, that part'of the declaration which should aver a transfer of the-note to the plaintiff is unintelligible. The words “by indorsement assigned” are there; but who assigned is not stated. This Court formerly decided, that under the statute rendering notes, &c., assignable, the declaration must show the assignment to be on the note itself, and under the hand of the assignor. Archer v. Spencer, 3 Blackf., 405. We have .since ruled that an averment, that the payee or legal holder “indorsed” or “assigned” a note was a sufficient allegation of assignment. Givan v. Matlock, November term, 1839.(1) We do not consider the former decision as overruled by the latter; but that an averment that a note was indorsed or assigned, is equivalent to stating that it was assigned on the note under the hand of the assignor.

¶3Per Ouriam.—The judgment is affirmed with costs.