By the Court,
Paine, J.This action was brought to foreclose a mortgage. It is averred in the eomplaint that the mortgage, with a bond of $20,000, was executed by Alexan? der McGlurg, to secure the plaintiff for liabilities he was to incur for the City Bank of Eacine, by accepting its drafts, indorsing its notes, &c., to an amount not exceeding $10,000. It is further averred that the plaintiff did become liable as indorser upon several notes, for the bank; that he was compelled to and did pay the same; and that he was therefore entitled to collect the amount so paid from the defendant on the bond and mortgage. The several notes are copied in the complaint
The defendants demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and specified numerous defects relied on. The plaintiff moved for judgment, on account of the frivolousness of the' demurrer, which motion was granted by the court below; and from that judgment this appeal was taken.
One objection specified in the demurrer is, that the notes mentioned in the complaint were not the notes of the City Bank of Eacine, but were merely the personal notes of Alexander McGlurg. The first note is as follows, and the others are drawn in the same form:
“ $2,000. City Baítk of BaciNE,
Eacine, July 7,1859.
Three months after date I promise to pay to the order of *457A. MeClurg, two thousand dollars, value received, at the American Exchange Bank, N. Y.
(Signed) A. McCluKG-, President.”
It is claimed that these are not the notes of the bank, first because they do not purport to be such, and because if they did, it is essential that they should, under the banking law, be signed not only by the president, but by the cashier also, to be valid.
It is claimed further, that the bank had no authority to issue any promissory note whatever, other than those provided for by the banking law.
We shall not at this time express any opinion on the merits of these questions, but shall only say that if determining upon the frivolousness of the demurrer involves their decision, then it cannot, within the rule frequently acted on by this court, be considered as frivolous. The cases cited by the counsel for the appellant, show that some of these questions have been the subjects of serious deliberation by the highest courts of other states, and that their adjudications have been such as at least to require reflection and investigation, in order to determine them properly.
But it seems, from the opinion of the circuit court, that the judge held the demurrer frivolous, even though the above objections to the validity of the notes, as notes of the bank, were conceded to be good. He sustained the right of the plaintiff to recover, upon the ground that whether or not the notes were strictly valid as against the bank, still as the' bank had the money, and the plaintiff endorsed the notes and paid them, they being executed at least by the officers of the bank, it came fairly within the spirit and intent of the indemnity bond. Perhaps this conclusion should, upon an argument of the demurrer, be sustained. But we think it is not so obviously right as to condemn the pleading for frivolity. The bond of indemnity was, as stated in the complaint, to secure the plaintiff for any liability he might incur for the Bank of Racine, “ by accepting their drafts, indorsing their notes, and the renewals thereof.” Now if he indorsed notes which were not the notes of the bank, and on which *458^an^: was not ^11 ^aw’ certainly does not come witbin tbe letter of the bond; and although it may be brought within its spirit by an application of equitable or legal principles to the other facts stated in the complaint, yet certainly that conclusion is not so obvious as to be apparent without argument or examination.
The judgment is reversed, with costs, and the cause remanded for further proceedings.