Reports of Cases Decided in the Supreme Court of the State of Indiana Volume 15

Reports of Cases Decided in the Supreme Court of the State of Indiana Volume 15

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1890 edition. Excerpt: ... " It was necessary for the plaintiffs to make use of some diligence in pursuing Thatcher, the survivor of Whitney, and if you find that five years had elapsed after the death of Whitney, prior to the bankruptcy of Thatcher, it is an inexcusable negligence on the part of the plaintiffs, and may be considered in determining the matters in issue; and you may even consider four years in determining the plaintiffs' right to recover. If the jury find that there is no evidence of assignment of the note of S. L. Collins & 0'0. to the plaintiff, he can not recover." The first branch of this charge is undoubtedly wrong. We understand the law to be, that upon the death of one of two joint debtors, the creditor has the right to collect his claim, at law, from the survivor; or, at his option, to proceed in equity against the estate of the deceased. Vide Weyer and 1lcKee v. Thornburgh, ante, 124. A neglect to pursue the survivor until he _became bankrupt, or for any particular period of time, so long as the claim is not barred by the statute of limitations, can not affect the right of the creditor to make his claim out of the estate of the deceased joint debtor. If by the latter branch of the charge it was meant, that proof was necessary of an indorsement of the note, by the payees to the pfaintitf, Samuel L. Collins, it was clearly wrong; because the note might be equitably assigned so as to vest the equitable interest in the assignee, whereby he could have sued upon it in equity, and can now, by statute, sue upon it in his own name, without an indorsement. But if the charge meant that there must be proof of a sale and transfer, merely, of the note, we still think it wrong, and' calculated to mislead the jury, as more

Product details

  • Paperback
  • 189 x 246 x 11mm | 363g
  • United States
  • English
  • black & white illustrations
  • 1236964268
  • 9781236964267