Bank of Winona v. Wofford

Campbell, C. J., delivered the opinion of the court. It has long been the settled doctrine of this court that a promissory note or bill of exchange, which passes by mere delivery, and does not require assignment to confer title to it, but as to which the holder deidves title independently of indorsement and by the very terms of the express contract which the maker has issued to the world, is not within the scope and effect of our anti-commercial statute, and that no defense existing between the original parties can be set up in bar of a recovery by one who acquired the paper in good faith, for value, before maturity. Craig v. Vicksburg, 31 Miss., 216; Stokes v. Winslow, Ib., 518; Mercien v. Cotton, 34 Ib., 64; Holman v. Ringo, 36 Ib., 690; Winstead v. Davis, 40 Ib., 785. The application of the doctrine has been to paper payable in terms to bearer, but a note payable to the order of the maker, and indorsed by him, is, when it comes into being as an enforcible contract, payable to bearer, although not so expressed. It is nothing until indorsed and delivered, and then it is payable to bearer, and transferable by delivery, and all the reasoning applicable to instruments payable to bearer applies in full force to it. It follows that both are on the same footing, and subject to the same rules. Daniel on Neg. [713] Inst., §§143, 693; Tiedeman on Com. Pap., § 20; Randolph on Com. Pap., § 153; Moses v. Bank, 149 U. S., 298. There is no magic in the word “bearer.” A contract to pay to bearer is held not to be within the statute referred to, because it embraces only instruments having a payee and requiring assignment to pass title. Therefore, an instrument which, by its terms, is a promise to pay whoever may bear it, even though the word bearer is not in it, must be of the same effect, because of the same nature. It follows that the defense held good by the circuit court is not maintainable. Reversed, and remanded for a new trial.