Campbell v. Jordan

A suit may be brought in the circuit court by an indorsee against his immediate indorser whether a suit could be there brought against the maker or not. In such a case, the plaintiff does not claim through an assignment. It is a new contract, entered into by the indorser and indorsee, upon which the suit is predicated; and if the indorsee is a citizen of a *1174different state, he may bring an action against his indorser in the circuit court. This rule has been established and acted on by the supreme court in several cases, and must be considered as settled law. Young v. Bryan, 6 Wheat. [19 U. S.] 140, 151; Evans v. Gee, 11 Pet. [36 U. S.] 83. It is true, that where an indorsee of paper other than a foreign bill of exchange sues a remote in-dorser, and is obliged to trace his title through intermediate persons, he must show that they could have sustained an action in the circuit court. Mollan v. Torrance, 9 Wheat. [22 U. S.] 537. He there claims, not in virtue of a new contract, but through an assignment and in the character of assignee, and comes directly within the prohibition of the eleventh section of the judiciary act of 1789, unless he can show that the intermediate indorsers were suable. 1 Stat. 79. This is not that kind of a case, and the principle does not apply.

As to the second cause of demurrer, it is sufficient to observe that this suit is not founded upon the writing obligatory, but is predicated on an indorsement of it by the defendant to the plaintiff. If it was made in this state, as seems to be admitted at the bar, it is negotiable paper; and all indorsers or assignors become equally liable with the original maker, obligor, or payee, on receiving due notice of the non-payment or protest of the instrument. Rev. St. IOS. The writing obligatory is properly set out in the-declaration to give a history of the case, and to show the amount for which the defendant is liable on his indorsement The indorsement, as already observed, constitutes a new contract, upon which this suit is founded. The undertaking of the defendant is not under seal, but arises solely from the indorsement, and consequently the action is well brought. 1 Chit. PI. 118. Demurrer overruled.