Pace v. Welmending, Hoguet & Co. undertook as a part of its business to pay out the money as it might be checked for by the depositor. An ordinary debtor does not undertake to pay his debt in that way, nor can he be compelled to make such payments. (Mandeville v. Welch, 5 Wheaton, 285; 18 Ben. Monroe, page 756.) The demurrer to the petition as amended should also have been sustained. The judgment is reversed and cause remanded with directions to dismiss the petition. CASE 29-PETITION ORDINARY-MAY 1. Pace v. Welmending, Hoguet & Co. APPEAL FROM JEFFERSON COMMON PLEAS COURT. A PROMISSORY NOTE PAYABLE TO THE MAKER'S OWN ORDER, indorsed in blank and delivered by him, operates as a promise to pay the face of the note at maturity to the party to whom it was delivered, and constitutes an enforceable obligation. (Myers's Supp. 741; General Statutes, sec. 13, chap. 22.) By filling up the blank with words of promise the party to whom such a paper was delivered may change the implied promise into a promissory note, and thus not only extend the period of limitation which will bar an action upon it, but convert it into an assignable obligation. As to the makers of such a note, protest and notice of dishonor are altogether immaterial. Pace v. Welmending, Hoguet & Co. JUDGE LINDSAY DELIVERED THE OPINION OF THE COURT. This action is founded on a paper denominated a promissory note drawn by R. E. Cross & Co., payable to the order of themselves, and indorsed in blank to the appellees. In the case of Muhling v. Sattler (3 Metcalfe, 285) this court held that a paper thus drawn and indorsed did not of itself impose any legal liability upon the maker, and that the utmost effect that could be given to it was that it might evidence the existence of a previous indebtedness of the maker and indorser to the indorsee, when executed with the intent of binding the maker for the payment of such previous indebtedness and on account thereof. Subsequent to that decision the general assembly, by the 1st section of an act approved Jan. 24, 1866 (Myers's Supplement, 741), provided "That whenever a promissory note is made by the obligor payable to himself or to his order, and is signed on the back thereof by the said obligor, and then delivered, such signature and delivery shall operate as a promise to pay the face of the note at maturity to the party to whom the same shall have been delivered, and such party may fill up the blank with words of promise and recover thereon in the same manner as if such party had been named as payee in the note; and such note shall be assignable as are other promissory notes." Said section was continued in force by the 13th section of chapter 22 of the General Statutes. The appellees in this case did not fill up the blank with words of promise, and appellant insists that, on account of their omission in that respect, the paper sued on does not impose a legal liability upon the makers. It will be observed that the statute provides that the signature on the back of such a note, and the delivery thereof, shall operate as a promise to pay the face of the note at maturity to the party to whom the same shall have been delivered. Pace v. Welmending, Hoguet & Co. The appellees allege, in their petition, that the makers of the note executed, signed, and delivered it to them, and they ask to recover on the promise thus raised by operation of law. That promise certainly constitutes an enforceable obligation, and the petition therefore presents a good cause of action. This construction will not render the last two clauses of the section of the statute under consideration unnecessary and superfluous. By filling up the blank with words of promise the party to whom such a paper shall be delivered may change the implied promise into a promissory note, and thus not only extend the period of limitation which will bar an action upon it, but convert it into an assignable obligation. The answer, with the amendment, presents no defense to the action. Pace concedes that he was at one time a member of the firm of R. E. Cross & Co. He says that he withdrew from said firm in May, 1874. The note sued on was executed on the 28th day of April, 1874. He does not claim that the note was falsely dated, nor that it was delivered subsequent to his withdrawal from the firm; nor does he intimate in his pleadings that it was not executed for partnership purposes, nor that it was without consideration. As to the makers of the note, protest and notice of dishonor were altogether immaterial. These conclusions obviate the necessity for passing in detail upon the questions of evidence and law raised upon the trial of the cause and upon the motion for a new trial. We have not noticed the defense to the paragraph of the petition setting out an account against R. E. Cross & Co., nor the defense founded upon the alleged composition with and the release of R. E. Cross by the appellees, as they were each abandoned by the parties on the trial of the cause. Judgment affirmed. 135 743 135 744 APPEAL FROM JEFFERSON COMMON PLEAS COURT. 1. WHEN A FOREIGN ADMINISTRATOR CAN NOT SUE IN THIS STATE. A foreign administrator of a non-resident decedent has no power to sue in this state "if there be an executor or administrator of such decedent qualified by a court of this commonwealth." (General Statutes, chap. 39, art. 2, sec. 45.) 2. SURVIVOR OF ACTIONS FOR suffering anD LOSS OF LIFE caused by the wrongful act or negligence of the defendant. TWO CAUSES OF ACTION DO NOT SURVIVE, one for mental and bodily suffering before death, the other for the loss of the life, the suffering and death being caused by the same wrongful act or negligence. The party entitled to sue must elect whether he will bring the one or the other action. One action is abated in this case because of the pendency of the other. 3. THE COMMON-LAW ACTION FOR THE MENTAL AND BODILY SUFFERING of the deceased caused by the same acts or negligence which caused his death-his death not being immediate-will bar an action under the statute by the widow, or heir, or personal representative of the deceased, to recover for the loss of his life. 4. THE STATUTORY ACTION by the widow, heir, or personal representative of the deceased for the loss of his life will bar an action by his personal representative for the mental and bodily suffering of the deceased before his death caused by the same acts or negligence which caused his death. 2 Gavin & Hord's Statutes of Indiana, pp. 330, 524. 1 Smith's Leading Cases, p. 945 2 Bibb, 458, Watts v. Thomas. 11 Bush, Hansford's adm'x v. Payne & Co. 14 B. Mon. 165, Eden v. Lex. & Frankfort R. R. Co. 16 Mich. 180, Hyatt v. Adams. 23 N. Y. 465 and 485, Whitford v. Panama R. R. Co. 35 N. Y. 352, Mahhe v. N. & N. Y. Transportation Co. 98 Mass. 85, Richardson's adm'x v. N. Y. Central R. R. Co. JUDGE PRYOR DELIVERED THE OPINION OF THE COURT. The petition in this case alleges that the death of the plaintiff's intestate was caused by the wrongful acts and negligence of the defendant (the appellee). In what this negligence consisted is set forth in the petition. It is further alleged that the facts constituting the cause of action originated in the state of Indiana, and a recovery is sought upon an Indiana statute giving to the administrator of an intestate the right to recover damages for the death of the latter caused by the negligence or wrongful act of the defendant. The mother of the intestate administered on his estate in both the states of Indiana and Kentucky. The present action was brought by the Indiana administratrix, with an allegation disclaiming to sue as the Kentucky administratrix. The Kentucky administratrix, prior to the institution of the present action, had instituted an action in the Jefferson Court of Common Pleas, alleging the same facts constituting the negligence of the appellee, resulting finally in the death of her intestate, but seeking to recover (as maintained by counsel) damages only for the mental and bodily suffering of the intestate, by reason of this negligence, prior to his death. A motion was made requiring the party to elect as to the action she would prosecute. That seems to have been VOL. XII.-11 |