2 Stew. 259 | Ala. | 1830
The only question to be decided is, whether the bearer, who is not the obligee
On this question there has been heretofore a diversity of opinion, and it affords us some satisfaction that a case now occurs in which the practice can be settled by a legal adjudication..
I did believe that it had been settled by the decision in the case of Howell and Smith v. Hallett,
If the judgment in the case of Howell and Smith v. Hallett was not decisive of the question now under consideration, the reasoning embraced in the opinion has a direct application, and I shall insist on its full benefit. /1 lay it down then as an incontrovertible proposition, that at common law, no chose in action was assignable, so as to authorize the assignee to sue in his own name; that by the law merchant, which was incorporated into the body of the common law, bills of exchange became negotiable; and by the aid of certain English statutes, inland bills, promissory notes, and checks on banks were also made negotiable; and that those are the only contracts or choses in action which are strictly negotiable at this day in England, and on which the assignee can maintain an action in his own name. These positions are clearly illustrated in Chitty on Bills.
If then, writings obligatory or notes under seal are not negotiable or assignable at the common law, so as to authorize the assignee to maintain an action in his own name against the obligor, if the action be at all maintainble, it must be by virtue of oijr statute of 1813;
But it has been contended that a bond or note under seal, payable to bearer, will pass by delivery in the same manner as a bank note payable to bearer. And in support of this proposition, the 3d of Kent’s Commentaries
To maintain the present action, much reliance has also been placed on the case of Bullard v. Bell,
Can it with any sort of plausibility be insisted, that a bill single or writing obligatory, the most essential and distinguishing qualities of which are scaling and delivery, possesses in this respect the same negotiable qualities, and is governed by the same rules as bank notes, which
It is said, that a writing under seal supposes an obligor, an obligee, and thing contracted for. In the case before us, who was the obligee? I answer Battelle and Wilkinson. The delivery also, which was an essential part of the transaction, was to them. How then, could there after-wards be another delivery to a subsequent holder by the same obligor? When Lucas sealed and delivered the instrument to Battelle and Wilkinson, that was a completion of the contract, and he could not'become bound to any other person by a subsequent act of the obligee. There was.no privity of contract between Lucas and the plaintiff; and though the instrument is payable to Battelle and Wilkinson, or bearer, this only authorized the bearer to sue in the name of Battelle and Wilkinson, and recover to his own use. A majority of the Court are for affirming the judgment.
The single question in the case is, whether a bill single, given to A. B. or bearer, can be sued on in the name of the bearer, without having been assigned to him by A. B. It has been contended this cannot be done for several reasons:
1. Because such instruments are not negotiable, and this would give them a negotiable character.
2. Because the legal interest is vested in the payee, and it requires an assignment from the payee to the holder, to pass it out of him.
3. Because the Statute passed in'December, 1812, “concerning the assignment of bonds, notes, &c.” requires that such an instrument shall be assigned, to enable the holder to sue in his own name.
I do not consider it necessary to deny the first position, in order to maintain the doctrine that such an action may
From these authorities and reasons, I arrive at the conclusion that an instrument payable to bearer is considered as executed to the holder; that whether this instru
It is clearly proved by the case last cited, that sealed, instruments are not placed by the decisions on a different-footing from promissory notes, so far as this question is involved. But it is insisted, that although a suit might be brought by the holder, if the bill were made payable simply to “bearer,” yet when made payable to “A. B. or bearer,” it cannot; that in the latter case it is evident the instrument was delivered to a different person from the one who sues, and that it would be contradicting it by a presumption, to infer that the obligation to pay was entered into with any other person.
This is a distinction, so far as authorities have been adduced, and the researches of counsel seem to have been great, never before taken. The case decided by Judge Story was exactly similar to the present. The note was' payable to William Pitt or bearer; and such a distinction is excluded by the language of Chitty before quoted, when he says the payee will be considered “a mere cypher.”
I think true policy, if the law will admit it without great violence, requires at our hands the same decision in this case, which we would make were the action founded on a promissory note. By our statutes they are placed in almost every instance, and for every purpose, on the same footing; they are the kind of instruments most
Having disposed of the two first positions taken by the defendants counsel together, I come now to examine the last: which is, that our statute prescribes “assignment” as the only mode by which an instrument of this kind can be transferred, so as to vest in the holder a right of action.
This act declares, “that .all bonds, obligations, bills single, promissory notes, &c. shall and may hereafter be assigned by indorsement, whether the same be made payable to the order or assigns of the obligee or payee, or not; and that the assignee shall and may sue in his own name, &c.” It seems to me that a simple question might put down the objection raised on this statute at once. Was it a restraining or was it an enabling act? Certainly not the former. The object was to enlarge the powers of holders of these instruments, except so far as it repealed a previous statute, making promissory notes negotiable; and it is against all rule to construe a statute having this object, in a way which would give it a contrary effect. But the meaning of the words, “whether the same be made payable to the order or assigns of the obligee or payee or not,” can very readily be perceived, and full effect given to them, without any such restraining construction. By the Law Merchant, bills and notes are not negotiable, unless the words “or order,” be inserted in them; although a good bill or note, so far as the parties to -it are affected; yet these words are essential to render it
From the best exercise of my judgment, I have formed the opinion that the judgment of the Circuit Court should be reversed.
Judgment affirmed.-
Minor’s Ala. Rep. 102.
Page 4 — 11.
Laws of Ala 69.
Page 59 .
15 Mason 252,
1 Mason 252.
Page 16.
See Chitty on bills 66.