44 Ky. 107 | Ky. Ct. App. | 1844
delivered the opinion of the Court.
This action by petition and summons, was brought by Odenheimer & Tenant as the holders of a note for $100, executed by Douglass & Soward, payable one year after date, to Alanson Taylor or bearer. The petition does not set forth any written assignment or endorsement of the note by Alanson Taylor, therein named as the payee, nor does it, (and indeed it could not,) make any distinct averment of a delivery of the note to the plaintiffs, whereby they became the proprietors thereof. But this averment as prescribed in the statute giving the remedy by petition and summons, is applicable only to the'case of the plaintiff being the holder of the note by endorsement, which exvi termini, implies a written assignment in some form. The remedy is given to any person “holding a note,” &c. that is, to any person having the legal title.
The petition standing in the place of a declaration, must show that the plaintiff has title to sue, that is, it must
In the case of Reese vs Walton, (4 B. Monroe, 510,) this Court said: “So far as regards the transfer of the legal title and right of action on this instrument, (which was a common promissory note not payable to bearer,) the effect of an assignment is the same under the statute as under the mercantile law, and as the statute is silent as to the form of assignment, the mercantile law' has been looked to as furnishing analogies on that point.” By the principles of the mercantile law, the terms and tenor of the instrument itself, as being payable to order or to bearer, determines the mode of assignment by which the legal title is to be transferred ; and therefore, in the case of a bill or note payable to A. B. or bearer, delivery alone is regarded as an assignment which passes the legal title: Gibbon vs Merit, (1 H. Black. 605; Chitty on Bills, 131.) Since then our statute makes these notes assignable, conforming so far to the mercantile law, without prescribing the form or mode of assignment; we are of opinion that on the ground of analogy, and on the ground of the good sense and reason of the rule which refers to the tenor of the instrument, as determining the mode of assignment, delivery alone, without writing, should be deemed a sufficient assignment of a note payable to A. B. or bearer, so as to enable the bearer to sue as assignee, under the statute of assignments, and as holder under the statute giving the remedy by petition and summons. It will, of course, be implied that the holder suing as such, came by the note lawfully. If he did not, and it be material, his title may be impeached by plea.
Wherefore, the judgment for the defendants on their demurrer to the petition, is reversed, and the cause is re