M'Nitt ex rel. Babcock v. Hatch

Blackford, J. Debt on a promissory note commenced before a justice of the peace. The suit was-brought by Samuel M’Nitt, for the use of Thomas J. Babcock, against Timothy A. Hatch. The following cause of action was filed: “ Action of debt founded on a note as follows: ‘ Due M’Nitt (meaning the said plaintiff) or bearer 35 dollars, nine months from date, for value received. Mexico, 10th May, 1828.’ (Signed by the said defendant by the description of T. A. Hatch.) The said Babcock is the bearer of thenote, and has the beneficial interest in the same. .The defendant refuses to pay the note or any part thereof for the use aforesaid. To the damage of the plaintiff, for the use aforesaid, 20 dollars. Hence this suit is brought.—J. A. Liston, att’y for the'plaintiff.” Plea, the general issue. The justice gave judgment for the defendant, and the plaintiff appealed to the Circuit Court. Judgment in the Circuit Court for the defendant. The point decided by the Circuit Court was, that the note did not tend to support the cause of action. This decision is erroneous. The defendant’s objection to a recovery is, that as the declaration shows Babcock to be the bearer and beneficial owner of the note, the suit should have been in his name. But there is no good ground for this objection. The note being payable to M’Nitt or bearer, and the payee not having assigned it by indorsement, we are of opinion that the legal title to it is in M’Nitt. Promissory notes are not negotiable either by indorsement or delivery, according to the common law. By the English statute of Anne, they are negotiable; and, when payable to bearer, they are, by that statute, transferable by delivery. But that act is not in force here. Our statute on the subject enacts, that promissory notes, payable to any person or persons, shall be assignable by an indorsement thereon. But it [532] has no expression in it tending to show that any notes are transferable by delivery, except such'as are payable to bearer, and at some chartered bank within the state. R. C. 1831, p. 93. J. A. Liston and J. Morrison, for the plaintiff. H. Cooper, for the defendant. The note Under consideration was not payable at a chartered bank within the state, and was not therefore transferable by delivery. It follows, that the mere fact that Babcock was the bearer of the note, did not show that he was the legal owner of it. The legal ownership of the note was in M’Nitt, and the suit was therefore correctly brought on it in his name. 1 Chitt. Pl. 2 (1). Per Curiam. The judgment is reversed with costs. Cause remanded, &c. Footnotes [(1)] In general, the action on a contract express or implied, by parol, under seal, or of record, must be brought in the name of the person having the legal interest in the contract, and, generally, with his consent, or at least, after a sufficient indemnity has been tendered to him. 1 Chitt. Pl. 2—3 Chitt. G. Pr. 127. Perhaps, as the person for whose use the suit is brought is in this state liable for costs, there is no occasion here for the consent, &c. above-mentioned. Stat. 1833, p. 113.—R. S. 1838, p. 458.