James C. Hall, et al., v. Cincinnati, Hamilton & Dayton R. R. Co.

separate agreement. The real question was, had the mortgagor power, by the terms of the agreement entered into between the parties at the execution of the mortgage, to defeat the security, at his own option, by the sale of the mortgaged property; if so, it was said, the intention of the parties could not have been to create a security, but a ward to keep off creditors. So far as the power to destroy the security is concerned, it may be as effectually exercised under a separate agreement, as under one expressed in the mortgage itself, and if there be any difference between the two cases, it is in favor of the instrument containing the power of sale upon its face; for in such case the transaction is open, and none are deceived by appearances. In the other the agreement is secret; it contradicts the apparent intent of the instrument, and is calculated to mislead purchasers and confiding creditors, by a false appearance of ownership.

The decision of the court, at special term, was founded upon, and is entirely harmonious with, the authority of the case cited, and will therefore be affirmed.

Judgment affirmed.

JAMES C. HALL, ET AL. v. THE CINCINNATI, HAMILTON AND DAYTON RAILROAD Co.

1. Under the code, an assignee of a claim of damages, resulting from injuries to personal or real estate, may bring an action in his own name.

2. Such claim for damages, as assignee, is a separate cause of action from a claim arising by injury to the same property, after its purchase by such assignee; and a demurrer will lie, if not separately stated and numbered.

SPECIAL TERM.-On demurrer to petition.

Caldwell & Paddack, for plaintiffs.

Worthington & Matthews, for defendants.

STORER, J. The petition alleges that the plaintiffs have

James C. Hall, et al. v. Cincinnati, Hamilton & Dayton R. R. Co.

leased certain premises in Cincinnati, for a term of years, with the privilege of purchase; that before the lease, as well as since, the defendants have obstructed the public thoroughfare, claimed to be a street, to the free use of which the occupants of the premises leased are entitled; it is also averred that the obstruction is caused by the road track of the defendants, which passes over the thoroughfare, not only preventing the uninterrupted enjoyment of the easement, but being elevated above its ordinary level, has caused the premises adjoining to be overflowed and greatly injured. The defendants have demurred.

Two questions arise on the pleadings:

First, can the causes of action be joined in the petition? It will be seen, the plaintiffs ask to recover for the damages alleged to have been sustained by their lessors before the conveyance to these lessees, alleging an assignment of the right to recover the damages of the former owner; they also ask remuneration for the injuries to which they have been subjected since their estate commenced.

Section 25 of the code requires every action to be prosecuted in the name of the real party in interest, except in a few cases, which are described in section 27.

Section 398 provides that "in addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to personal or real estate, or for any deceit or fraud, shall also survive."

A collation of these sections leads us to the conclusion that it was the intention of the legislature to preserve the right of action in cases enumerated, and to confer the power to assign it to those who originally were entitled to it. No other construction can harmonize the code; and as the distinction between law and equity is abolished, there is little practical difficulty in the prosecution of the remedy that may be necessary to secure it.

This was held to be the proper construction of the New York code, by Judge Paige, in 1 Selden, 347, Hoyt v. Thompson; and Judge Story, in 1 Peters, 213, Comegys et al.

John Huff v. Richard Ashcraft.

v. Vasse; held, "that mere personal torts, which die with the party, and do not survive to his personal representatives, are not capable of passing by assignment; and that vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of, and adhering to, property, may pass by assignment."

We believe, then, that the original owners of the premises in question might well assign a cause of action accruing before the conveyance, and the assignee thereof may sue for the damages in his own name.

The second question refers to the joinder of two causes of action in the same count.

We suppose this point is settled by section 86 of the code, which provides "that when the petition contains more than one cause of action, each shall be separately stated and numbered."

The demurrer, therefore, will be sustained for the misjoinder, and leave given to the plaintiff to amend his petition.

Demurrer to petition sustained.

JOHN HUFF v. RICHARD ASHCRAFT.

In the event of the death of the maker of a promissory note, the rule of diligence does not make it necessary to make demand of payment at the dwelling of the deceased on the day of his funeral.

SPECIAL TERM.-The facts of presentment, demand, etc., are stated in the decision.

French & Kirby, for plaintiff.

Dodd & Huston, for defendant.

STORER, J. The only real question in controversy, is the sufficiency of the presentment of the note for payment, and

John Huff v. Richard Ashcraft.

this involves the other question, whether the facts stated b the notary are equivalent to such presentment. The notary states, that on the day the note became due, he inquired for the maker, and was informed that he was dead, and was to be buried on that day, and finding no one to attend to the note, notified the indorser the same day.

It is contended by the defendant's counsel, that the notary should have called at the defendant's dwelling-house and left a notice with his family, on the day he referred to, though he admits that no administration had been granted on the estate.

It is well settled, that if the maker of a note, or the acceptor of a bill, is dead, when the note or bill becomes due, that the personal representative of the deceased, his executor, or administrator, must be notified, either personally or by letter, and payment demanded; the rule may have its exceptions, but it is now the rule established. So well is it understood, in practice, that no English authorities, we are told, can be found, in which the question has been mooted. Chitty on Bills, 11 Amer. Ed. 497 and note.

See also, Story on Promissory Notes, $241, who quotes Chitty to sustain the text; also, Story on Bills, §352, who refers to Chitty also; also to Bayley on Bills, ch. 7, §2, p. 200; Molloy B. 2, ch. 10, §34; the last writer lays down the rule thus: "If a bill be accepted and the party dies, yet there must be a demand made of his executors, or administrators, and a protest must be made." The same proposition is laid down by Byles, in his work on Bills, 142, who quotes Chitty to support the rule. Judge Story, in both his treatises, refers to 3 Peters, 87, Magruder v. Union Bank of Georgetown; and 16 S. & R. 157, Juniata Bank v. Hale; neither of these cases support the proposition, and we are left at last to the rule as stated in Molloy, which seems to be the basis of all subsequent practice by the commercial world. The Supreme Court of New York, in 17 Johns. 26, Merchants' Bank v. Birch, held the law to be thus settled, but quote no authority; so also in 2 Humphrey, 114, Planters'

John Huff v. Richard Ashcraft.

Bank v. White, the Supreme Court of Tennessee adopt the rule, and refer to Chitty to authorize their decision. See 12 Mass. 86; 1 Nott & McC. 439.

Thus far the law is admitted. In the present case, there was no legal representative of the deceased, neither executor or administrator, and the indorser was properly notified that the debt was unpaid at maturity. But we are asked to require, of the plaintiff, the proof that a demand was made at the dwelling-house of the maker, as there were then no proper legal representatives.

We suppose the object of the demand is, to require payment of the note, by the party liable to pay, and if he is dead, then by those upon whom the settlement of his estate is cast; and as they alone have the responsibility, they are alone properly chargeable with the evidence upon which the estate of the decedent is to be held liable. Now it is well settled that neither the death, insolvency, absence, nor bankruptcy of the maker or indorser, will excuse demand and notice, and the reason given by the elementary writers is, that if the demand was made, however apparently hopeless the effort might appear, perchance some person might pay the demand for the honor of the party liable, and the distant probability of such a fact is matter of defense. The proposition does not determine the mode in which notice shall be given, or demand made, but discloses only the ground upon which really depends the right of the indorser to require the proper evidence to charge him.

If a notary, when called on to demand payment, ascertains that the maker or acceptor has absconded, left the country, or can not be found at his place of business, he may regard the proper presentment as made, and notify the indorser accordingly. The principle of the rule thus established is, that everything had been done that could be reasonably required, the law never compelling the performance of an act that would be barren of any result; a vain thing it never requires to be done. Let us apply the rule to the present case: the maker is dead, no legal representative is