125. A strict foreclosure of the mortgage does not extinguish the debt, unless the value of the land is equivalent to the indebtedness. Ibid.

126. The statute authorizing a party to prove total or partial failure of consideration of note, does not go to the extent of authorizing proof to change its terms. WALTERS VS. SMITH, 23 Illinois Reports, 342.

127. An endorser is not a competent witness to impeach a note he has assigned. Ibid.

128. A plea of failure of consideration to an action on a promissory note, which avers that the payce of the note was to plant a hedge, which should become a complete protection within a given time, and that it was out of the power of the payee to perform his contract, is good. EDWARDS vs. PYLE, 23 Illinois Reports, 354.

VII. INDIANA.

129. Suit by the State Bank of Indiana, for the use of the branch at New-Albany, upon a promissory note. Before the determination of the suit, the charter of the State Bank expired; but before that time, the Bank of Salem had become the purchaser of the note sued on. A supplemental complaint was filed, showing the transfer, and alleging that the note was given for the purchase-money of a certain lot, sold by the State Bank to the defendant, and that a deed has been tendered before suit was brought, which had been handed over to the Bank of Salem. Held, that the right to keep up and make good the tender, by a delivery of the deed, passed to the Bank of Salem, as an incident to the assignment of the note. THE BANK OF SALEM vs. CALDWELL, 16 Harrison, 469.

130. Suit upon notes made in Ohio, and payable with 10 per cent. interest. Judgment for the amount of the notes, with the stipulated interest. Held, that as the notes were payable generally, they were payable everywhere, and not specially at the place of residence of the makers. ENGLER et al. vs. ELLIS, 16 Harrison, 475.

131. If the notes were payable in this State, they would still be good for the stipulated interest, unless that rate was prohibited by the law of Ohio, which was not made to appear. Ibid.

132. Where the endorsee of a promissory note alleges in his complaint that the note was endorsed to him by the payee, and sets out a copy of the note, with a blank endorsement, he may, on the trial, fill up the endorsement, or may recover without filling it up. MOORE VS. PENDLETON et al., 16 Harrison, 481.

133. Where an assignee of a promissory note alleges an assignment of the note to him by endorsement, he must set out a copy of the endorsement to him with his complaint. CONNARD vs. CHRISTIE, 16 Harrison, 427.

134. Where, in a suit by the payee of a promissory note, the note is given in evidence, the defendant may give in evidence endorsements of payments thereon, though unsigned, without proof of the handwriting in

which they are made; the session the note comes, to endorsements were made.

burden being on the plaintiff, from whose posexplain by whom, and for what purpose, the BROWN vs. GOODEN, 16 Harrison, 444.

135. Suit by an assignee upon a promissory note. The complaint averred that the defendant executed the note to the payee, who endorsed it to the plaintiff. Answer: That the endorsement of the note was without consideration, and for the purpose of avoiding answers to interrogatories, and that the plaintiff had no interest in the note. Held, that the legal conclusion from the averments of the complaint was, that the legal ownership of the note was in the plaintiff, and it was not enough for the defendant to controvert this legal conclusion, without specially controverting the facts upon which it rested, or showing other facts inconsistent therewith; as that the real interest remained in the payee, or had passed from the plaintiff to a third person. ELDER VS. SMITH, 16 Harrison, 466.

136. But where the maker is informed that the note has been already purchased, and promises the assignee to pay it, he is not estopped to contest its validity, as the promise could not have been intended to induce the purchase, even though it should appear that the note was not, in fact, purchased until afterwards. MORRISON et al. vs. WEAVER et al., 16 Harrison's (Indiana) Reports, 344.

137. Suit against the owners of a steamboat upon certain bills and notes made and accepted by the master, and purporting to have been given for the use of the boat, for insurance, &c. Held, that prima facie the master' had no authority to bind the owners to the payment of the bills or notes. HOLCROFT et al. vs. WILKES, 16 Harrison, 373.

138. He had no right as master, though himself a part owner, to insure for the other joint owners. Ibid.

139. Suit against the makers and endorsers of a promissory note, made and payable in Illinois. Held, that as the note was not payable to order or bearer in a bank in this State, no cause of action was shown, under our law, against the endorsers. BROWN vs. BUNN, 16 Harrison, 406.

140. If the endorsements were made in Illinois, and governed by the law of that State, such law should have been pleaded. Ibid.

141. The court, sitting as a jury, may infer from the face of a note payable "at the branch at Fort Wayne of the Bank of the State of Indiana," that it was intended to be payable at the "Branch at Fort Wayne of the Bank of the State of Indiana." MILLER et al. vs. PowERS et al., 16 Harrison, 410.

142. Suit upon a promissory note. Answer: That the note was given for a part of the purchase money of a saw-mill, and the assignment of a subscription for the purpose of rebuilding the same; that the vendor represented that the mill and machinery were perfect, and the subscription valid, and worth $300. That in fact the mill, machinery and subscription were of no value to defendant, and the note sued on was the last one given. Held, that the answer was bad on demurrer. THOMPSON vs. Voss, 16 Harrison, 297.

143. Where promissory notes are pleaded as a set-off, a replication denying the defendant's title to the notes, and particularly setting out the facts showing the title to be in another, is good. REILLY et al. vs. RUCKER, Executrix, 16 Harrison, 303.

144. Where a lease of land is for a term within the statute of frauds, and for that reason required to be in writing, and the lessee executes notes to the lessor for the rents, and takes possession of and occupies the premises leased during the term, the question whether the contract could have been enforced if either party had refused to perform it before the expiration of the term, is not involved, and the lessee is liable to pay the notes. GIBSON et al. vs. WILCOXEN, 16 Harrison, 333.

145. Where the maker of a promissory note, being informed that a third person is about to purchase the note, promises to pay it within a given time, and thereby induces the purchase, he is estopped from contesting its validity. MORRISON et al. vs. WEAVER et al., 16 Harrison, 344.

146. As the evidence is not in the record, this court cannot say that any thing was shown tending to impeach the returns; and if not, they might, when legitimately in evidence, be taken as conclusive in the given case. DAWSON vs. WALLS, 16 Harrison, 269.

147. Suit upon a promissory note. Answer: That the note was given to the payces thereof, at the request of one A., in settlement of an affair of bastardy; she, the said A., being then pregnant with a child begotten by one of the makers of said note; that a large sum, to wit, five hundred dollars, had already been paid, and that said bastard child died at birth. Held, that the mother being pregnant at the time of the execution of the note, had then a present right of action, and her promise not to bring the action was a good consideration for the note, which the death of the child did not in any degree affect. HARTER et al. vs. JOHNSON, 16 Harrison, 271.

148. Where an assignee takes a note, upon the representation of the maker that it will be paid, or is good, the latter is estopped to defend against the payment of the note. WRIGHT 28. ALLEN, 16 Harrison, 284.

149. The possession of a note by the payee is prima facie evidence that he is the owner of it, although there may be on the note a special endorsement of it by him to a third person; and he may, if he thinks proper, strike the name of such endorsee from the note. MENDENHALL et al. vs. BANKS, 16 Harrison, 284.

150. Where, at the time of the execution of a note not governed by the law-merchant, but still negotiable, third persons place their names on the back of it, in the absence of the prior endorsement of the payee, their liability is prima facie that of endorsers; and there would be no variation in this rule when applied to notes negotiable by the law-merchant. SNYDER vs. OATMAN et al., 16 Harrison, 265.

151. Where endorsers place their names upon the back of a negotiable note at the time of its execution, in the absence of the prior endorsement of the payee, perhaps parol evidence is admissible to rebut their prima facie liability as endorsers, and show it to be that of makers; but where

the payee first endorses the note, evidence is not admissible to rebut such prima facie liability of the subsequent endorsers. Ibid.

152. Suit by the assignee of a promissory note against his assignor, alleging the insolvency of the maker. A judgment had been obtained on the note against the maker, and executions returned nulla bona, but due diligence had not been used in bringing the suit. Answer: That diligence had not been used against the maker of the note, who, long after the time when a judgment might have been obtained against him, had property subject to execution. The executions issued on the judgment against the maker, and the returns of the officer, were offered in evidence, and objected to by the assignor, on the ground of irrelevancy. Held, that as it does not appear but that the judgment on which the executions issued was given in evidence without objection, and as the executions and returns might tend to show insolvency at a given, though immaterial time, the court cannot say the evidence did any harm. DAWSON vs. Walls, 16 Harrison, 269.

153. E., as trustee of Indian Creek Township, having obtained a judgment against F. and G., upon which an execution had been issued and a levy made, took from them and others, as their sureties, a note for the amount of the judgment, conditioned that the sale on the execution should be postponed until the maturity of the note, and that payment of it should satisfy the judgment. Held, that the trustee, being entrusted by statute with the management of the pecuniary concerns of the township, had power to make the agreement. PHILIPS et al. vs. EAST, Trustee, &c. 254. 154. The payment of the note, or of the judgment obtained thereon, would authorize satisfaction to be entered on the original judgment. Ibid.

155. The master of a boat has no power, simply as such, to endorse or execute bills and notes binding the owners. HOLCROFT et al. vs. HALBERT, 16 Harrison, 256.

156. Notes payable to order, but not at a bank in this State, though negotiable, are not governed by the law-merchant as to diligence against makers and rights of defence. SNYDER vs, OATMAN et al., 16 Harrison, 265.

157. The expression, "Chartered Bank," was inadvertently used in MIX VS. THE STATE BANK, 13 Indiana Reports, 521, in stating what notes are put by the statute on the footing of inland bills of exchange. Ibid.

158. Where the names of endorsers appear upon a note without any date, the endorsements will be presumed to have been made at the date of the note. Ibid.

159. The makers of the note were estopped to deny the legal existence of the State Bank of Ohio at the time the note was given. HALL vs. HarRIS, 16 Harrison, 180.

160. In a suit by the assignee of a promissory note against the maker, a judgment recovered against the maker as garnishee in an attachment proceeding against the payee or any prior holder of the note, may be pleaded in bar of the suit, if the judgment was rendered before the maker had notice of the assignment. SHETLER US. THOMAS, 16 Harrison, 223.

161. Suit upon a promissory note. Answer: That the note was given in consideration that plaintiff had repaired, and would further repair, a threshing machine, and that he had failed, though often requested to make such repairs. Held, that the place of making the repairs would be the shop of plaintiff, and the answer should have shown that the machine was placed there, and the repairs requested. MOUNTJOY vs. MULLIKIN, 16 Harrison, 226.

162. Where a party places his name upon the back of a negotiable promissory note, creating a liability in favor of the payee, the presumption is that he intends to assume the liability of an endorser, and nothing more; but this presumption may be controlled by parol evidence, showing that he, in fact, intended to assume the liability of a maker, in which case he will be regarded as a joint maker. SILL et al. vs. LESLIE, 16 Harrison, 236.

163. Where a party is shown to have signed a note as a surety, he may be charged as a joint maker. Ibid.

164. Where the maker of a promissory note is inquired of by a person proposing to take an assignment of the note, as to the validity thereof, and answers that he has no defence against it, he is estopped from setting up any defence against such person or his assignee. ROSE v8. TEEPLE, 16 Harrison's (Indiana) Reports, 37.

165. The consent of the endorser of a promissory note that suit against the maker may be postponed, need not be in writing, nor based on a consideration, in order to continue the liability of the endorser. FREE vs. KIERSTEAD, 16 Harrison, 91.

166. Where time has been granted, and the license is afterward revoked by the endorser, the endorsee must bring suit against the maker within a reasonable time after notice of such revocation; as the case then stands, as to future time, as if no such consent had been given. Ibid.

167. Suit for the foreclosure of a mortgage. Answer: That the notes and mortgage, though executed to the plaintiff alone, were given for goods purchased of a mercantile firm of which plaintiff was a member; that the other co-partners had never assigned their interest in the debt to plaintiff, and that the real beneficial interest therein was in said firm. Held, that the defendant was estopped, by the execution of the notes and mortgage, to plead the matters set up in his answer. FRENCH et al. vs. BLANCHARD, 16 Harrison, 143.

168. Suit upon a promissory note, dated at Piqua, Ohio, and payable at the branch of the State Bank of Ohio at that place. Held, that the note bore on its face presumptive evidence that it was made in Ohio. HALL VS. HARRIS et al., 16 Harrison, 180.

169. A notarial protest is presumptive evidence of the manner and time of presentment as stated therein, and is therefore evidence in a suit on the bill. DICKERSON VS. TURNER, 12 Indiana Reports, 223.

170. It is a question of law, to be discussed only after it has been admitted, whether the facts therein stated are a good presentment. Ibid.