The opinion of the court was delivered by
It is impossible to sustain this judgment. Without considering the minute objections to the original or amended statement, there are two material objections. The first strikes at the foundation of the action. The instrument was not assignable, nor the subject of the indorsement, so as to enable the assignee, or indorsee, to sue the maker in his own name.
Though courts of law are now in the constant habit of taking notice of the assignment of choses in action, and of giving effect to them, yet they always adhere to the formal objection, that the action should be brought in the name of the assignor, and not of the assignee.
The common law relaxed the rule at a very early period as to foreign bills of exchange, and afterwards, as to inland bills of exchange, and the statute law enables the assignee or indorsee of a promissory note to maintain an action in his own name.
At a very early period of the province, 28th May, 1715, an act passed for assigning bonds, specialties, and promissory notes, and enabling the assignee to sue in his own name. But this is confined to obligations, or promises to pay to any person or persons, their assigns or order, any sum of money. So is the stat. of dlnne. It is the legal definition of a promissory note, that it is a promise or engagement to pay a specific sum at a time therein limited, or on demand, or at sight, to a person there named, or his order, or to bearer. No precise form of words is necessary. It is sufficient if the note amounts to an absolute promise to pay money.
Stock contracts for delivering of six per cents., are not negotiable, though they may be rendered so by express stipulation. Reed v. Ingraham, 3 Dall. 505.
Now the value of six per cents, is less precarious and fluctuating than the value of the notes of some chartered banks, at the time this note was given. The contract was for a specific matter, 500 dollars to be paid in bank notes of the chartered banks of Pennsylvania. It is not payable in money.
There is a case in 3 Johns. 120. Keith v. Jones, in which it was held, that a note payable to A. or bearer, in state bills or specie, is a negotiable note, and may be declared on such. It is but an imperfect sketch without much argument, and one short reason assigned. Payable in state bills or specie, is, however, different from payment in notes of any chartered bank, because there the
But, if the iudorsee co.uld maintain the action, he must show, that he is the indorsee. It is not a note passing by delivery, payable to bearer. The maker of it did not promise to pay to the bearer, but to the order of payee. Strike out the indorsement, and what is the right of the plaintiff below. He must claim by and through the indorsement. It is his authority to call for the money. Blank indorsement transfers the legal right, because the holder may fill it up; he is allowed so to do by the payee. But he cannot make an indorsement. The bona fide holder of a note, payable to bearer, may recover on his possession, but where payable to order, he must prove the order, which can only be done by proving the indorse
So in an action by the indorsee against the indorser, it may not be necessary to prove the handwriting of the drawer, because the indorsement is in the nature of a new note, and if the drawer’s name was forged, still the indorser would be liable. But here it was necessary to set out the indorsement, and to prove it. The averment of indorsement could not, as the court supposed, be struck- out, without destroying the plaintiff’s right of action. It was a material, necessary averment, the very foundation of the action, a necessary allegation, traversed by the defendant’s plea of non assumpsit, and without proof of which, the plaintiff had no standing in court. For both these reasons, the judgment is reversed.
Judgment reversed.