delivered the Opinion of the Court.
This is a petition and summons, brought by Hogan and Thompson against Rice, on the following writing, as a bill of exchange:
“ Philadelphia, April 15th, 1837.”
“ Eight months after date, pay to the order of Hogan « and Thompson, five hundred and twenty dollars, value “ received, and charge the same to account.”
“ For Mr. James Rice, “ Louisville, Kentucky”)
Hogan 8f Thompson.”
The petition avers that, in due time, the bill was presented to the drawee for acceptance, and that he, there
The Circuit Judge, to whom both the law and the facts were submitted, rendered a judgment against Rice, for five hundred and twenty dollars with interest; and, in the revision of that judgment, the following points are presented for consideration:—
1. Is the writing sued on, a bill of exchange?
2. If it be such a bill, is it foreign or domestic?
3. If it be a foreign bill of exchange, does the statute of 1837, (Session Jlcts, 41,) authorizing the “ holder of any protested bill of exchange” to sue, by a petition and summons, the drawer, endorser, or acceptor, either jointly or severally, authorize such a suit by the drawers, in this case, against the acceptor1'
4. If the statute constructively authorizes the suit, is the judgment sustained by the facts exhibited in the record?
First. We have no doubt that the writing is a bill of exchange. There may be but two parties to a bill. A written request to pay money to the order of the drawer, and upon his general credit, is a bill of exchange and upon a general acceptance, the acceptor may be required to pay to the drawers themselves, if, by endorsement and notice in due time before the day of payment, they make the bill payable to themselves.
Second. Nor have we any doubt that, as the bill was drawn in Philadelphia on the drawee in Louisville, which places are in two different States of this confederacy, it should be deemed, nothing appearing to the contrary, to be a foreign bill.
Third. It does not appear that the bill was protested; nor was a protest necessary as between the drawers and the acceptor. The first section of the act of 1837 applies literally to only protested bills; and another section (the 6th) applies to domestic bills, upon which a protest is not material as between any of the parties to them. If the first section does not embrace this case, the suit, as brought, is not authorized by the act of 1837.
The phraseology of the entire enactment, and especially that of the first section, is peculiarly ambiguous; and the form prescribed in the first section is not appropriate to more than one of several classes of cases evidently embraced by that section. Such a remedial statute should be liberally construed. A suit by a drawer against an acceptor is obviously comprehended by the object of the enactment. The form of the petition, as prescribed by the first section, applies literally to bills of exchange, whether protested or not; and there could have been no motive for restricting the new remedy upon foreign bills to such as shall have been protested — a protest being immaterial to the form of remedy; and the sixth section showing, as it does indisputably, that it was the right of action, and not the mode of acquiring or proving it, that was alone considered by the Legislature.
Considering the character and policy of the enactment of 1837, we feel authorized to conclude that “protested’’ in the first section should be deemed synonymous with dishonored; and that the Legislature intended to allow the more summary and simple remedy by petition, on any bill of exchange whenever an action of assumpsit could be maintained on the same bill, and between the same parties.
“ The holder” of a bill is he who is in possession of the bill, and is legally entitled to the benefit of it; and therefore the drawer, as well as any other party, may become “ the holder.”
The first section of the act of 1837 was, in our opinion, intended to apply to every “ holder” of a bill of exchange wherever, as such, he shall have a right to sue thereon.
Fourth. The petition neither averred a presentation of the bill for payment, nor transcribed the endorsement to Loughborough; nor was there, on the issue, upon the plea of nihil debit, any proof of either a re-indorsement by Loughborough to the drawers, or of an erasure of the endorsement by them to him. But these omissions ai’e not, in our judgment, material.
It seems to be well settled by adjudged cases, that, in a suit against an acceptor, for non-payment, according to a general and unqualified acceptance, it is not necessary to aver a formal demand or a presentation of the bill for payment. Chitty on Bills, 249. And had Loughborough been beneficially interested as endorsee, still, as the suit was brought, not by him, but by the drawers, the statute of 1837 did not require a transcription of the endorsement into the petition, and the acceptance and plea waived all proof of the averment of such endorsement. But the averment that Loughborough was a mere agent of the drawers, and therefore only a nominal endorsee, showed that, virtually, the bill was made payable to the drawers themselves, and that, therefore, an averment of payment by them to him, or of any formal re-endorsement to them, or of any actual erasure of the endorsement to him, was not necessary to their right of action against the acceptor. And moreover, the mere fact that the drawers have become the holders of the bill, was prima facie evidence that they had acquired it rightfully, and were entitled to the exclusive benefit of it. Bell vs. Morehead, 2 Marshall, 161-2.
Wherefore, it is considered that there is no available error in the judgment, and that it be therefore affirmed.
%* There were two other similar cases decided at the same time.
April 27.