4 La. Ann. 303 | La. | 1849
The of the court (King, absent,) was pronounced by
There is perhaps some looseness in the clerk’s certificate of the transcript,, but it is aided by the statement of facts made at the trial; and we see no reason to doubt that the transcript presents all the evidence upon which the cause was tried.
Phelps is the payee of the note, upon which this suit is brought against Elli~ ott, the maker,. The transfer of the title to a promissory note is not restricted to the form of an endorsement merely. It may be assigned by an independent instrument. In a court of common law the mere assignee of a negotiable instrument, not endorsed by the payee, would not be permitted to sue in his own name; ' but a court of equity would aid the assignee in its collection, and certainly there is no objection under our system to the assignee suing in his own name. See Hughes v. Harrison, 2 La. 92.
The defendant has not shown any equitable defence, which could have been maintained against the payee, were he plaintiff in the cause.
The district judge was not satisfied with the evidence adduced to show the ownership of the note. In this opinion we do not concur. The plaintiff relies upon a notarial act of assignment of a promissory note which corresponds, as therein described, in date, amount, parties, rate of interest, maturity, and, in all other respects, with the note held by the plaintiff, with the single exception that the note described in the notarial act is said therein to be secured by mortgage of certain land, according to an act mortgage which is referred to. The defendant contends that the note contemplated by the transfer cannot be the same note held by the plaintiff, because this note exhibits no notarial paraph. He refers to the 3347th article of the Code, which directs that every notary before whom an act shall have been made, by which notes to order have been given in payment óf a debt bearing a privilege or mortgage, shall attest each of the notes by putting his name on them, mentioning the date of the act from which the privilege or mort
It is very certain that, 'Phelps would never be permitted to.recover from the defendant upon this note, even if he could hereafter jprove, which we have no reason to believe he could .do, that if was not the. note assigned to the plaintiff, and 'that the plaintiff 'got possession of it wrongfully, unless, at least, he could' also 'show that Elliott had in his power the means óf disproving the presumption of identity created by the act of transfer, and neglected to use them.' It would b6 'prima facie a sufficient answer to him to say, he had put into the hands of the present plaintiff an instrument describing the note transferred in such terms as to justify the convictio'n that it was the note now in question,'.and that if the note really transferred bore a notarial paraph it was his own fault that he did not say so in the assignment.
It is proper to observe that, the defendant does not state in his answer, nor even directly assert in arguni'ent, that he had giv.eh Phelps, another note of like tenor with this. It is also to be observed that'the'plaintiff simply asks a personal judgment against Elliott, and does hot ask, in this suit, to enforce the mortgage. 1
It is therefore decreed, ’that the judgment of the court below be reversed, and that the plaintiff recovekof the defendant the sum of $458 .92, with interest thereon from the 6th December, 1841, until paid, and the costs of this suit in the court below and those of the appeal. " 1. ' .
