10 Watts 130 | Pa. | 1840
The opinion of the court was delivered by
It was for some time doubted whether, in respect of the want of privity between the parties, an endorsee could support an. action of debt against the drawer of a bill, or maker of a note. It has been ruled, that the action may be supported by the payee of a promissory note against the maker, when expressed to be for value received, or by the drawer against the acceptor of a bill, expressed to be for value received in goods, and by the payee of a foreign or inland bill of exchange, expressed to be for value received, against the drawer, and by .the first endorsee agaiust the first endorser, who was also the drawer of a bill payable to his own order. 2 Bos. & Pul. 78; 1 B. & C. 674; 3 Serg. & Rawle 165; 3 Price 251.
But in Bishop v. Young, 2 Bos. & Pul. 81, the court intimated a doubt, whether debt would lie where the action was brought by any other person than him to whom the note was originally given,
But although the act was evidently designed to do away with form, yet substance cannot be altogether disregarded when the party pursues this remedy. Here the suit is brought by the plaintiff as endorsee, and it is necessary for the bank to exhibit a title to the note; but, instead of this, the statement shows the title in the payees, or original parties, to the note. The statement sets out the note in hsec verba: “ Three months after date I promise to pay to
One more point remains to be noticed; that is, whether after the entry of a rule to arbitrate, a judgment by default can be rendered, without striking off the rule. The case of The Mechanics’ Bank v. Fisher, 1 Rawle 347, differs from this; but in delivering the opinion of the court, Mr Justice Smith alluded to the case of Landis v. Bigler, which has not been reported. There, as is said, a. rule to arbitrate had been taken out, but not acted on-, but still remained on record; and the case being afterwards tried, and a verdict and judgment rendered for the plaintiff, this court, on error, reversed the judgment, declaring the Jaw to be, that whilst the rule to arbitrate remains the cause was out of court. It is to be regretted that the facts of the case are not Jcnown, as it is believed there was something more in it than is here stated. It is not recollected by any member of the court, that the broad principle has ever been asserted, that while a rule to arbitrate remains on the record, the cause was out of court. It never has been held, that the entry of a rule of reference, wherein the party declares his determination to have arbitrators chosen, deprives the court of jurisdiction. This effect cannot be produced until after the arbitrators are chosen, and the causéis committed to another tribunal of the parties’ own choosing. If no step has been taken except to enter the rule, and the time has gone by when the arbitrators are to be chosen, there is nothing to prevent either party from treating it as a nullity, as it appears on the record itself, that the attempt to arbitrate has proved abortive. The case would be materially different, if the cause was out of court, on reference; for in such case the party is entitled to an opportunity of showing the state of the facts, on a rule to show cause why the reference should not be stricken off.
Judgment reversed, and a venire de novo awarded.