June Term, 1860.

#### Burbank vs. French and another.

In an action by tbe assignee of a note against tbe maker, averments that tbe defendant *made*the note, and that tbe payee *indorsed*it to tbe plaintiff, who is tbe lawful bolder, and that tbe defendant is indebted to the plaintiff in tbe amount thereof, are sufficient, without any further allegation of tbe *delivery*of tbe note by tbe maker to tbe payee, or by tbe payee, to tbe plaintiff.

APPEAL from the Circuit Court for *Crawford*County.

Action on a promissory note. Demurrer to the complaint, *377on tbe ground tbat it did not state facts sufficient to constitute a cause of action. Judgment for plaintiff. Tbe tions of tbe complaint, and tbe objections made to' it, are stated sufficiently in tbe opinion of tbe court.

*P>. H. Johnson*and *O. B.*Thomas, for appellants,

in support of their objections to tbe complaint, cited *Parlcer vs. Totten,*10 How. Pr. Kep., 233; 8 id., 491; *Lord vs. Cheese-*trough, 4 Sandf., 696; 6 id., 692; *Garvey'vs.*Fowler, 4 id., 665.

*Bull & King, contra,*

cited *Churchill vs. Gardner,*7 T. B, 596; *Smith vs. McLwre,*5 East, 476; *Peats vs. Bratt,*6 Barb. S. 0. B., 662; *Bussell vs. Whipple,*2 Cow., 536; 2 Sandf. S. C. B., 673; Yoorhees’ N. Y. Code, 169 ; Cbitty on Bills, 588.

July 30

*By the Court,*

Cole, J.

Tbe objection taken to tbe complaint in tbis case, tbat it does not state facts sufficient to constitute a cause of action, we deem-untenable. It is insisted tbat tbe complaint is defective because it is not averred therein, tbat tbe note was ever delivered to tbe payee by tbe maker, or tbat tbe payee ever delivered it to tbe respondent. Tbe allegation is, tbat tbe respondents, on tbe 29tb day of January, 1858, made their promissory note in writing, whereby, sixty days after tbe date thereof, they jointly and severally promised to pay C. G-. Baldwin or order, at tbe Bank of Prairie du Cbien, tbe sum of *$150,*for value received; and tbat tbe said payee thereof endorsed tbe said note to tbe plaintiff, and tbat tbe plaintiff is tbe lawful bolder and owner of tbe said promissory note, and tbat tbe *defendant*is justly indebted to him therefor in tbe sum of $150, principal, together with interest from, &c. It appears to us tbat, under tbe liberal system of pleading established by tbe Code, tbis complaint is sufficient. Tbe allegation tbat tbe appellants made their promissory note, whereby, &c., they promised to pay tbe payee, for value received, and tbat tbe payee indorsed tbe same to tbe.respondent, who is tbe lawful bolder and owner thereof, and tbat tbe appellants are indebted to him therefor, is a sufficient averment of ownership and of title, without averring a delivery to tbe payee. For it is very clear tbat if tbe note was never delivered by tbe ma*378kers to tbe payee, it is in correct to say tbat tliey *made*tbeir note whereby they promised to pay, &c., and tbat tliey are indebted to tbe indorsee thereon in the principal sum with interest. Tbe *mcddng*of a promissory note, in common parlance, implies doing everything necessary to render it a valid instrument, while it would be a gross solecism to say a person was indebted upon a note wbicb be never made and delivered. *Ketellas vs.*Meyers, 19 N. *Y.*R., 231; *Chappell vs.*Bissell, 10 How. P. R., 274; *Churchill vs.*Gardner, 7 Term Rep., 596; *Russell vs. Whipple,*2 Cow., 536.

It is said tbat tbe allegation tbat tbe respondent is tbe “lawful bolder and owner of tbe note,” is but stating a legal conclusion. But tbe averment is, tbat tbe payee *indorsed*tbe note, a term of well known signification, implying, when used in such a connection, an assignment or transfer of title. It is further manifest tbat tbe allegation tbat *“*tbe defendant is justly indebted,” &c., is a mere clerical mistake, unworthy of any serious attention. It is not probable tbat tbe appellants were, or could have been, misled, by tbe use of tbe singular instead of tbe plural number.

Tbe judgment of tbe circuit court is affirmed.