24 N.C. 417 | N.C. | 1842
This is an action of assumpsit on two bills of exchange by the plaintiff asan endorser of Peebles, Hall & Co. against the acceptor. The bills were drawn on the 10th of July, 1841, by Peebles, Hall & Co., of Peters-burg in Virginia, in favor of F. E. Rives, on the defendant Sharp, of Danville, in Virginia, who accepted them, but failed to pay them when they fell due. The one was for $783 85 cts. at 90 days; and the other for $787 71 cts. at 4 months from date. Upon the failure of Sharp, the payee, Rives, returned the bills to the drawers, Peebles, Hall & Co., for payment; and they accordingly paid him and took up the bills. On the 10th of December, 1841, Peebles, Hall & Co. endorsed the bills to the present plaintiff, who resides in Caswell in this State, and immediately commenced this action by original attachment, levied on the estate of the defendant, situate in Caswell. The endorsement from Peebles, Hall & Co. to the plaintiff was without consideration, and was made for the pu rpose of enabling Price to take out an
For the defendant it has been insisted that the plaintiff cannot maintain this action, commenced by original attachment, because it is not brought for his own benefit, but, in evasion and fraud of the act of 1777, for that of Peebles, Hall & Co., who could not have brought it in their owti names, according to the case off Broghill v Wellborn, 4 Dev. 511. Whether this objection be valid or not, if taken in apt time, it is not now necessary to say; for, if good, it comes too late. Undoubtedly the ho'der of a bill may endorse it to another in trust for himself, or to collect as his agent, and the endorsee may have an action against the acceptor of the bill. The" objection is not, therefore, that this plaintiff could not maintain assumpsit on these bills, biff that he cannot commence that action by attachment, but should have doiie it by capias. The imputed defect lies in the writ, and the answer is obvious, that, by accepting the declaration and pleading to it, the party waives all defects in the process. This point should have, been raised by a plea in abatement or in some other method before pleading in bar. But in the opinion of the court there is another objection to the plaintiff is recovery, which has more force. It is, that the bills could hot be put into circulation by the indorsement of Peebles, Hall & Co., after those persons had paid them to Hives. If Rivés’ name had been put on the bills, the case of Beck v Robley, 1 H. Blac. 89; is a direct authority against •this action. In that case a bill was drawn by Brown oil Robley, ’ payable to Hodgson or order. Hodgson put his name off the bill; aiid, not being' paid when' diie, Hodgson, without striking but- his blank endorsement, returned the bilí
In considering the'case hitherto, it has been treated'as if Rives had put his name on the bills; in which case, even, we have seen that the law is against the plaintiff. Bu.t that fact is otherwise here; or, at least, does not appear, which is the same thing. In Beck v Robley, the plaintiff no doubt, did sue as the endorsee of Hodgson, the payee; so that he had
The endorsement to the plaintiff was a nullity, and he cannot maintain any action on the bills.
Per Curiam, New trial awarded.