change is a promise "to pay the money, if the drawee does not pay it;" consequently, the payee may bring the action against the drawer. 6 In this particular case, if the bearer cannot bring the action, who can ? No person at all is named. It is, "Pay to ship Fortune,' or bearer." Therefore, this particular case is out of all the cases cited. For they say "that the action must be brought in the name of the person to whom the note is made payable;" but there is no such person in the present case. It would be of infinite inconvenience, and would introduce the utmost confusion, if it were to be established "that the bearer of a bill or note made payable to bearer could not maintain his action upon it.” As to its being negotiable within the bills of mortality and no further, there is no color for such a distinction: it must be negotiable everywhere, if it is negotiable at all. Upon the whole, I think this to be a verdict against law, and am of opinion that it ought to be set aside. MR. JUSTICE YATES delivered his opinion much to the same effect, and clearly held the verdict to be against law. It was not within the province of the jury to determine upon the negotiability of this note: it was a question of law, not of fact, "whether such a bill or note was or was not negotiable." And nothing can be more peculiarly negotiable than a draught or bill payable to bearer, which is, in its nature, payable from hand to hand, toties quoties. And he was of opinion that an action will lie for the bearer of such a bill. The reasons given against it, in the cases which have been cited by the defendant's counsel, are not at all satisfactory. It had been doubted, it is true, "whether that species of action where the plaintiff declares upon the note itself as upon a specialty was proper;" but here is a count upon a general indebitatus assump sit for money had and received to the plaintiff's use. The question, "whether he can maintain this action," depends upon its being assign able or not. The original advancer of the money manifestly appears to have had the money in the hands of the drawer; and therefore he was certainly entitled to bring this action. And if he transfers his property to another person, that other person may also maintain the like action whoever has money in the hands of another may bring such an action against him. This appears from the determination of the case of Ward v. Evans, reported in 2 Ld. Raym. 930, where not a shilling of money had passed between the plaintiff and defendant; and yet Hold and Powell both held "that an indebitatus assumpsit for moneys received to the plaintiff's use properly lay." In the present case, the drawer had money in his hands belonging to Bicknell; and Bicknell must be considered as having delivered this instrument to the plaintiff Grant, which is tantamount to an indorsement. (A real indorsement of a note payable to bearer would have been absurd.) The delivery of it must indeed be proved; and the circumstances of the present case do amount to a proof of a delivery of it to the plaintiff. And there is no doubt about his having come by it fairly, bona fide, and on a valuable consideration. There would be great inconveniences if such an action as this is might not be brought by the bearer. If no action could be brought but in the name of the person to whom the bill or note was originally made payable, that person might release the action, or a debt due from him might be set off against it in account; and so the true owner of the note might lose the whole or part of it, though it was transferred to him upon a valuable consideration. As to the notion of its being negotiable in London, and not elsewhere, there is no foundation for such an imagination. It must be equally so out of London as in London; and it is just the same as a bank-note. Upon the whole, I think the jury have done wrong, and therefore the verdict ought to be set aside.1 Per Cur. (unanimously and clearly). Rule made absolute (for a new trial).2 1 Shelden v. Hentley, 2 Show. 160 (semble); Hinton's Case, 2 Show. 235; Anon.,! Salk. 126; Crawley v. Crowther, Freem. C. C. 257; Waynam v. Bend, 1 Camp. 175; Bullard v. Bell, 1 Mas. 243, 252; Carroll v. Meeks, 3 Port. 226; Edison v. Frazier, 9 Ark. 219; Carson v. Tatum, 24 Ark. 13; Cox v. Adams, 2 Ga. 158; Creighton v. Gordon, Morris (Iowa), 41; Hotchkiss v. Thompson, Morris (Iowa), 156; Shelton v. Sherfey, 8 Greene, 108; Eddy v. Bond, 19 Me. 461; Dole v. Weeks, 4 Mass. 451; Gilbert v. Nantucket Bank, 5 Mass. 97; Ellis v. Wheeler, 3 Pick. 18; Wilbour v. Turner, 5 Pick. 526; Truesdell v. Thompson, 12 Met. 565; Tillman v. Ailles, 13 Miss. 378; Cobb v. Duke, 36 Miss. 60; Hathcock v. Owen, 44 Miss. 799; Hutchings v. Low, 1 Green, 246; Pierce v. Crafts, 12 Johns. 90; Avery v. Latimer, 14 Oh. 542; Rankin v. Woodworth, 2 Watts, 134; Putnam v. Crymes, 1 McMull. 9 (a note payable to A. " or holder"); Matthews v. Hall, 1 Vt. 316, accord. Conf. Sprowl v. Simpkins, 3 Ala. 515; White v. Joy, 4 Ala. 571; Dawson y Jewett, 4 Greene, 157; Mainer v. Reynolds, 4 Greene, 187.-ED. • The plaintiff, upon such new trial, recovered the money. ACTION by the indorsee against the maker of a promissory note. At the trial before Abbott, C. J., at the London sittings after last term, it appeared that the note was made at Dundee, in Scotland; and it was objected that an action was not maintainable by the indorsee of a promissory note against the maker, except where the note is made in England. It was contended that the statute only contemplated inland promissory notes; and, if so, that a promissory note made in Scotland was to be considered a foreign note, and not within the statute; and Selwyn's Nisi Prius, 377, was referred to. The Lord Chief Justice overruled the objection, and the plaintiff had a verdict. Chitty now moved for a new trial, and urged the objection taken at the trial. Per Curiam. This is both within the words and the spirit of the act. The words are "all notes." The act was made for the advancement of trade, and ought, therefore, to receive a liberal construction. It is for the advantage of commerce that foreign as well as inland notes should be negotiable. This is, therefore, within the spirit of the Rule refused.1 act. 1 Splitgerber v. Kohn, 1 Stark. 125; Roche v. Campbell, 8 Camp. 247; Houriet v. Morris, 3 Camp. 803; Bentley v. Northouse, M. & M. 66; Hatcher v. McMorine, 4 Dev. 122 (semble), accord. Carr v. Shaw, Bayley, Bills (6th ed.), 28 (semble), contra. — ED. C A nate not contiming words of negotiation? ROBINSON, ASSIGNEE, v. BROWN. is not we ме IN THE SUPREME COURT, INDIANA, NOVEMBER TERM, 1835 wate [Reported in 4 Blackford, 128.] A PROMISSORY Note, executed by Ryland T. Brown and Alexander Gregg, and payable to Joseph S. Burr, was indorsed by the payee as asserned follows: "Mr. Gregg,-Pay the within to Jesse Robinson. (Signed) Could not Joseph S. Burr." Held, that this indorsement did not transfer the sue in his legal ownership of the note to Robinson, and authorize him to main-name tain a suit on it against the makers or either of them, in his own mider the name.1 1 Fernon v. Farmer, 1 Harringt. 82; Reed v. Murphy, 1 Ga. 236; Noland v. Chrichton v. Gibson, Mor. Dict. Dec. 1446; 1 Ross, 51, s. c.; Robinson v. contra. Conf. Kershaw v. Cox, 8 Esp. 246; Knill v. Williams, 10 East, 431; Bathe v. Taylor, 15 East, 412; Byrom v. Thompson, 11 A. & E. 31. · " In Putnam v. Crymes, 1 McMull. 9, a note payable to A., or holder," was deemed negotiable. In Raymond v. Middleton (29 Pa. 529, 530), the following extra-judicial observations were made by Porter, J., in delivering the opinion of the court: "So commonly are the terms or order,' 'or bearer,' employed in commercial instruments, that we are apt to suppose them essential to negotiability. It is otherwise. Words are but the signs: thought is chiefly valuable; and when, for a sufficient consideration, the minds of the parties have concurred in an agreement, that is a contract, and it must be executed as they intended, unless forbidden by law. 'Order' or 'bearer' are convenient and expressive, but clearly not the only words which will communicate the quality of negotiability. Some equivalent words should be used." Story on Bills, § 60. Words in a bill, from which it can be inferred that the person making it, or any party to it, intended it to be negotiable, will give it a transferable quality against that person.' United States v. White, 2 Hill, 59. The concession, therefore, may be made, that if the makers of this note, having omitted the usual words to express negotiability, had said, 'This note is and shall be negotiable,' it would have been negotiable." But the insertion of the words "negotiable and payable at bank" will not make See also Cariss v. Tattersall, 2 M & G. 890, 892; U. S. Bank v. White, 2 Hill, 59. The one to whom the the only one whe raw suc, the weak Andersenicul being only ૧૨ wvery', SECTION II. Mode of Transfer. (a) DELIVERY. DEATH v. SERWONTERS. IN THE KING'S BENCH, HILARY TERM, 1685. [Reported in Nelson's Lutwyche, 272.] DEBT brought on a bill of exchange, setting forth the custom of merchants: viz., that if a merchant at Venice did draw a bill upon a merchant in London, and it was accepted, then he became chargeable with the contents to the party to whom it was directed; and, if he indorsed it to another, the acceptor was then liable to the indorsee; and, if the first indorsee should afterwards indorse it, that the acceptor is still liable to the second indorsee; and if he should not pay the money to him, then if the second indorser pay it, the acceptor is become liable to him. That John Baptista Morelli, a merchant in Venice, drew a bill of exchange for 1000 ducats upon Death, the defendant in the original action, payable to George Ebretz, which bill the said Death accepted. That Ebretz indorsed it for value received to the plaintiff Ser wonters. That Serwonters indorsed it to Adam Conrade, who likewise indorsed it to De Barry; that the defendant Death, not paying the money to Conrade or De Barry, the plaintiff Serwonters paid it to Conrade; per quod, the defendant Death became chargeable to the plaintiff. There was a frivolous plea to this declaration, and upon demurrer to it judgment was given for the plaintiff in B. R., and now a writ of error was brought in the Exchequer Chamber, and the error assigned was: That this is an unreasonable custom, because the defendant Death might be charged at the suit of all the indorsees. But it was answered that, when the first indorser had signed the bill, the defendant stood no longer liable to him; and when the plaintiff, who was the second indorser, had indorsed it to Conrade, the defendant Death was no longer liable unto him; until, by his pay. |