#### Davis vs. Barron and others.

A indorsed a note made by B, payable to the order of C, which was, after such indorsement, delivered, for value, by B to 0. *Held,*that A was liable to C as indorser.

In an action on a promissory note payable at a particular place, an allegation in the complaint that on the day when the note fell due it was duly presented to *228the maker for payment, and that he did not then, and has not since paid it, or any part of it, and that the indorsers had due notice of the non-payment, is sufficient to show the liability of the indorsers.

APPEAL from tbe Circuit Court for *La Crosse*County.

Action on promissory notes. Tbe complaint alleges tbat on, &c., tbe defendant *Barron*executed several promissory notes, wbicb are particularly described, payable to tbe order of tbe plaintiff at tbe Exchange Bank in La Crosse; tbat tbe defendants *Cramer*and *Shepard*indorsed tbe notes before delivery; tbat after sucb indorsement tbe same were, severally, for value, delivered to tbe plaintiff; tbat on tbe day when they severally fell due they were duly presented to *Barron*for payment, but tbat be did not then and has not since paid them or any part thereof; and tbat *Cramer*and *Shepard*bad due notice of sucb non-payment. It also alleges tbat “ tbe defendants are, and each of them is, indebted to tbe plaintiff upon tbe said promissory notes, in the sum of $1,486, with interest,” &c. Tbe defendants *Cramer*and *Shepard*demurred to tbe complaint as not stating facts sufficient to constitute a cause of action against them ; and tbe circuit court made an order sustaining tbe demurrer, from wbicb tbe plaintiff appealed.

*Flint & Stag dill,*for appellant:

1. Tbe plaintiff sues as bolder of tbe notes, and tbe respondents, having indorsed them before delivery to tbe plaintiff, are liable to him as indorsers. Story on Prom. Notes, §§ 185, 476; *Willis vs. Creen,*10 Wend., 516; *Dean vs. Hall,*17 id., 214; *Hough vs. Cray,*19 id., 202 ; *Seahury vs. Hun-gerford,*2 Hill, 80; *Hall vs. Newcomb, 8*id., 283; S. C. in error, 7 id., 416; *Gilmore vs. Spies,*1 Barb., 158 ; S. O., 1 Corns., 321; *Moore vs. Cross,*23 Barb., 536, 538; *Waterbury vs. Sinclair,*6 *Abbot’s*E., 20; *Filis vs. Brown,*(per Peatt, P. J.), 6 Barb., 295. 2. If not liable to tbe plaintiff as indors-ers, they, having indorsed tbe notes before delivery, are liable as joint and several makers. Story on Pr. Notes, §§ 58, 59, 476, 466-9,479 ; 8 Kent, 122; *Leonard vs. Vredenbury,*8 Johns., 29 ; *Bailey vs. Freeman,*11 Johns., 221; *Nelson vs. Dubois,*13 Johns., 175; *Hough vs. Gray, supi'a; Dean vs. Hall, supra-, Ketchell vs. Burns,*24 Wend., 456; *Curtis vs.**229Brown, 2 Barb., 51; *I/uqueer vs. Prosser,*1 Hill, 256 ; S. 0., 4 id., 420 ; *Manrow vs.*Durham, 3 Hill, 584 ; *Miller vs.*Gas-. *ton,*2 Hill, 188; *Bunt vs. Brown,*5 id., 145; *Partridge vs. Colby,*19 Barb., 248 ; 3 Mass., 274 ; 5 Mass., 358, 545 ; S. C., 6 Mass., 519; 11 id., 436; *White vs. Hoiolcmd,*9 id., 314; 8 Pick, 122, 130, 423; 19 id., 260; 24 id., 64; 4 id., 385 ; 8 Cush., 154; 7 id., Ill; 3 Met., 275 ; 8 id., 504 ; 13 Met, 262 ; S. C., 2 Cush., 310; 32 Maine, 339 ; 36 id., 264; 13 HI, 682; 9 Tt, 345; 12 id., 219; 20 id., 355; 11 N. H., 385 ; 5 Smedes & Marshall, 627 ; 13 id., 617 ; 11 Penn. St. R., 482; 4 Conn., 389 ; 1 Louisiana, 248. 3. The averment of presentment and demand is sufficient. Rev. Stat., 724, sec. 24; N. Y. Code, sec. 162 ; *Gay vs. Paine,*5 Howard’s Pr. R., 107 ; Van Santvoord’s PL, 162, 140; *Moore vs. Gross,*19 N. Y., 227 ; *Banh vs. Willis,*8 Met, 504.

*Johnson*& *Oameron,*for respondents:

1. In order to charge the indorser of a note made payable at a bank, an averment and proof of a demand at the place appointed in the note are indispensable, if the bank itself is not the holder. *U. 8. Bank vs. Smith,*11 Wheat Rep., 171; *Shaw vs. Heed,*12 Pick., 132 ; *Lee Bank vs.*Spencer, 6 Met, 308; Story on Prom. Notes, §§ 227, 230; Chitty on Bills, 172, 178, 8th ed.; *Watkins vs. Grouch,*5 Leigh, 522; *North Bank vs. Abbot,*13 Pick., 466 ; *Woodbridge vs. Brigham,*13 Mass., 556; *Gibb vs. Mather,*8 Bing., 214. 2. There is no legal liability on the part of' a second indorser of a promissory note, to pay the same to the first indorser, to whose order the note is made payable. *Bradford vs. Martin,*3 Sandf, 647 ; *Bilis vs. Brown,*6 Barb., 282; *Herrick vs. Carman,*12 Johns., 159; *Herrick vs. Oarman,*10 Johns., 224.

January 2.

*By the Court,*

Cole, J.

The question arising upon the demurrer in this case, has already been passed upon by this court, in the case of *Cady vs. Shepard,*decided at the present term [12 Wis., 639]. In that case we held that persons indorsing a promissory note, under the circumstances in which it is alleged that *Cramer*and *Shepard*indorsed the notes mentioned in the complaint, were liable on the same as indorsers. It is very true that there -• has been very *230great diversity of opinion, among courts as to tbe ground upon wbicb parties indorsing commercial paper, before its delivery to tbe payee, could be lield — some authorities considering that they were liable as makers, some tbat they were liable as guarantors, and some tbat they were liable only as indors-ers ; still such parties have almost uniformly been held liable upon some ground. We thought the most reasonable and satisfactory ground upon which the liability of such a party was to be placed, was that of indorser. And although at first view there would appear to be a great inconsistency in holding that a party thus indorsing a promissory note was liable to the payee in the character of indorser simply, still by commercial usage we have no doubt that he must be so held, and that this is the proper construction to be given to the contract. Obviously, a person indorsing a note before delivery thereof to the payee, intends rendering himself liable to the payee in some character and upon some ground. He must intend and design to secure its payment and give credit to the paper by placing his name upon it, even in the hands of the payee. He cannot complain if courts hold him to his contract.

The complaint alleges that the notes were presented to the maker for payment when due, and that payment was refused, and that due notice of the non-payment was given the indorsers. This is sufficient to fix their liability.

The order of the circuit court sustaining the demurrer must, therefore, be reversed, and the cause remanded for further proceedings.