
    Wilson and Another v. Clark.
    
    Suit by the payee against the makers of promissory notes. Answer, that before suit brought, the plaintiff sold and delivered the notes to A., and received from A. the price and consideration of said sale, &c.; that from the time of such sale, &c., up to the present, they have been wholly the property of A., and in his possession, and he is the only person who has any interest in them or their proceeds; that by said sale, &c., the plaintiff assigned the notes to A. without indorsement; that the plaintiff is not the owner of the notes, or either of them, nor has he any interest whatever in or to them; that he has not now, nor has he since said sale, &c., had, either of the notes in his possession; that the plaintiff did not direct or authorize the commencement of this action in his name, but it was commenced by the direction of A. alone. Held, good on demurrer.
    The notes sued on were executed in Michigan, and the complaint contained the following clause: “By the law of Michigan, in force at the date of the notes, and from thence hitherto, the said Ciarle [the plaintiff], or his indorsee, can alone maintain the action.”
    
      Held, 1. That it is uncertain, from this language, whether a statute is relied on or not; but it may be so regarded, as the doubt must operate against the pleader.
    2. That the clause of the complaint did not put the law of Michigan into the case — it amounted to nothing.
    3. That where a statute of another state is relied on, it mnst be fully recited in the pleading, that the Court may judge of its effect.
    
      Braclcenridge v. Baxton, 5 Ind. R. 501, overruled.
    The statute (2 R. S. p. 45) has changed the rule for pleading private statutes of this state; but no change is made as to pleading laws of another state.
    
      Monday, December 20.
    APPEAL from the Lagrange Court of Common Pleas.
    
      
      
        A petition for a rehearing of this case was filed on the 13th of January and overruled on the 16th of the same month.
    
    
      
       To the point upon the sufficiency of the answer Mr. Ellison cited 2 R. S. pp. 27, 28, §§ 3, 6; 9 Ind. R. 278; Id. 306; 7 id. 470; 10 id. 205.
    
    
      
       Mr. Howe, in his petition for a rehearing, cited the following authorities:
      
        Touching the right of suit in the indorser, as regulated by the lex loci, see Trimby v. Vignier, 1 Bing. (N. C.) 151, holding that this relates to the obligation of the contract, and not to the remedy — ad valorem contractus, and not ad modum et consuetudinem prosequendi.
      
      The assignee’s title depends on the lex loci contractus. Yeatman v. Cullen, 5 Blackf. 241.
      The plaintiff’s right of action in this case is governed by the lex loci. Story on the Conflict of Laws, § 263.
      The assignee of an Irish judgment may sue in England in his own name. Id. § 474.—O’Callaghan v. Thomand, 3 Taunt. 82, 84.
      In the cases of Tenon v. Mars, 8 B. and C. 638; De La Vega v. Vianna, 1 B. and Adol. 284; and The Brit. Linen Co. v. Drummond, 10 B. and C. 903, the remedy, only, was in question.
      A transfer of a note of the Bank of England in France, to a bona fide holder, is valid. De La Chaumette v. The Bank of England, 2 B. and Adol. 385.
      A note negotiable on its face, made in Connecticut, though not assignable there, may be assigned and sued on in New York. Aliter, perhaps, if not negotiable on its face. Lodge v. Phelps, 1 Johns. Cases, 139.—S. C. Caines’s Cases, 321.
      A note negotiable at the place where it is made, may be indorsed in a place where it is not permitted by law, so that suit may be brought in the forum. Story’s Conflict of Laws, § 294.
      A note payable in New York, and indorsed in Indiana, must he governed, as to holder’s rights, by the law of New York. Shanklin v. Cooper, 8 Blackf. 41. This case is based upon the authority of Trimby v. Vignier, supra.
      
      A note is presumed to be payable where it was made. Story on Promissory Notes, § 172.—Story on Bills, §§ 158, 164, 166, 169. See, also, Ory v. Winter, 16 Martin (La.), 277.
      An assignment or indorsement without date, is presumed to have been made at the date of the note. Ewing v. Sills, 1 Ind. R. 125.—6 id. 478.
      An allegation that an indorsement was made at Lafayette, is presumptively established by the facts that the note was made there, and that some of the parties resided there. Spears v. Clark, 3 Ind. R. 296.
      An indorsement will be presumed to have been made at the place where the note was made, until the contrary appears. Duncan v. Sparrow, 3 Rob. (La.) 167.
      Supposing the note to have been indorsed here, § 803, 2 R. S. p. 224, saves the right of action. See, also, the constitutional provision. No part of the practice act is retroactive. 2 R. S. p. 224, § 801. The general repealing act saves vested rights. 1 R. S. p. 431, § 2.
      Notes dated before the code went into force, are governed by the former law. Lewis v. Hathman, 7 Ind. R. 587.
      The right of action existing at the date of a contract, is a part of its obligation. Lewis v. Brackenridge, 1 Blackf. 220. To the same effect, and showing that there can be no change of liability without consent. See 15 Mass. R. 447; 16 id. 215; 8 id. 422.
      A right of action cannot be taken away, if the consideration has failed after the right accrued. The People v. The Supervisors of Westchester, 4 Barb. (Sup. Court) 64. Nor can it he created by legislation. Brunswick v. Litchfield, 2 Greenl. 28.
      
        The slightest change in a contract is as much prohibited as the greatest. The Bank of the State v. The Bank of Cape Fear, 13 Ired. 75.
      If there are three remedies, one of them cannot be taken away. A mortga- “ gor, having the right to sue at law on the bond, to foreclose, and to bring ejectment, the act of 1843, although it left standing the two former remedies, could not take away the latter. 1 Mann. (Mich.) 68.
    
   Perkins, J.

Suit by the payee against the makers of promissory notes.

Answer by the defendants, “that before the commencement of this suit, said Clark, the payee of the notes and plaintiff in the suit, sold and delivered said notes to Thomas J. Spalding, and received from said Spalding the price and consideration of said sale and delivery; that from the time of the delivery by said Clark to Spalding, up to the present, they have been wholly the property of Spalding, and in his possession; that said Spalding is the only person who has any real interest in or title to said notes, or their proceeds; that said Clark, by said sale and delivery, assigned said notes to said Spalding without indorsement; that said Clark is not the owner of said notes, or either of them, nor has he any interest whatever in or to them, nor has he now, or at any other time since said sale, had either of said notes in his possession, nor did said Clark direct or authorize this action to be commenced in his name, but it was commenced by the direction of said Spalding alone.”

Demurrer to this answer sustained. Judgment for the plaintiff for the amount of the notes.

The answer was a good bar to the action, and the demurrer to it should have been overruled. By our statute, suit must be brought in the name of the real party in interest. See Lamson v. Falls, 6 Ind. R. 309; Harvey v. Myer, 9 id. 391; Ferry v. Jones, 10 id. 226; Swift v. Ellsworth, id. 205.

Another point is made in the case. The notes sued on were executed in the state of Michigan, and the complaint contains the following clause:

“By the law of Michigan, in force at the date of the notes, and from thence hither to, the said Claris, or his indorsee, can alone maintain the action.”

It is uncertain from this language, whether a statute is relied on or not; but it may be so regarded, as the doubt must operate against the pleader.

It is insisted upon this averment that the suit, as to parties, is rightly brought, and that the law of this state as to parties cannot control it.

Waiving the question, for the present, whether if the Michigan law were really brought before the Court, it could have the effect claimed for it, it is enough for the purposes of this case to say that the law of that state has not been put into the case. The clause quoted from the complaint amounts to nothing. It is a mere assumption, by the pleader, of a legal proposition, without an averment of any facts for the proposition to rest upon. Pleadings should state facts, not legal propositions. Under our system of pleading, if a written instrument or record, or other matter of fact, be relied on as the foundation of an action, it must be placed plainly, fully, and with certainty, upon the record. If the law of another state be relied on, that law must be fully recited in the pleading, that the Court may judge of its effect, and be able to give a construction to it. Sedgw. on Stat. p. 34. Archbold says, in his Pleading (pp. 146,147), that if a statute be pleaded, it must be specially “recited in the pleading; otherwise the Court cannot take notice of anything contained in it.” This is the language of all the books and adjudicated cases. 14 Petersd. Abr. p. 172.—1 Blacks. Comm. p. 85, note.—The Ohio, &c., Co. v. Ridge, 5 Blackf. 78.—The State v. The Trustees, &c., 5 Ind. R. on p. 91. The case of Brackenridge v. Baxton, 5 Ind. R. 501, can scarcely be supported.

A. Ellison, for the appellants .

J. B. Howe, for the appellee .

Our statute (2 R. S. p. 45) has changed the rule so far as it relates to private statutes of this state. They may be pleaded'by reference to title and day of approval, because such pleading enables the Court, without inconvenience, to examine the act in the printed statute-book. But no change is made as to pleading laws of another state. These, the Court may not be able to examine in the books. They may have to depend upon the copy recited in the pleading.

As to the point which we passed by, touching the right of the legislature to alter the law as to parties, it is one not necessary, it will be perceived, to be here decided. The point has, however, been determined in Hancock v. Ritchie, at this term , in which it is held that the statute authorizing the equitable assignee to sue in his own name, relates to the remedy alone, and applied to then existing contracts.

Per Curiam.— The judgment is reversed with costs. Cause remanded, &c. 
      
      
        Ante, 48.
     