This is trover for three single bonds. The plaintiff's intestate owned the bonds. One was payable to him or bearer; the others were payable to him. The intestate delivered the bonds to his son, John McLean, saying, "I give these to you and your children forever." The son died soon after his father, having the bonds in his possession, and the defendant, who is his widow, took them into her possession and converted them.
His Honor charged that the gift was perfected by the delivery; the right thereby vested in the son, and the plaintiff could not recover. To this part of the charge the plaintiff excepts. We think the exception well founded as to the bonds payable to the plaintiff's intestate. The plaintiff yields the question as to the bond payable to his intestate or bearer.
By the act of 1786 the bonds payable to the plaintiff's intestate are considered as if payable to him or order; and it is provided that all such bonds shall be negotiable, and all interest and property therein shall be transferable by indorsement in the same manner as promissory notes; and, by the act of 1762, promissory notes are made assignable in the same manner (159) as inland bills of exchange are by the custom of merchants in England; and inland bills of exchange payable to order are, by the law merchant, assignable by indorsement and delivery. Baily on Bills, 98.
The result is that the two bonds in controversy were negotiable by indorsement and delivery. In that way, and in that way only, can the right of property be transferred. Both acts must concur. An indorsement without a delivery will not effect the transfer. Nelson v. Nelson, 41 N.C. 409. And for the same reason the transfer is not perfected by delivery without indorsement.
At common law a note or bond was not considered property. It was not the subject of larceny. It could not be seized upon a fieri facias, nor could it be transferred in any way. It was a *Page 123 mere "chose in action," an ideal thing — giving certain rights to the owner — and although courts of equity, from an early period, have given protection to persons who, for valuable consideration, purchased this ideal thing, or right to have money, courts of law have never recognized a third person as being the owner, unless the interest and property therein have been transferred in the manner prescribed by the statute.
It is said that by allowing the action of trover to be brought for the conversion of notes and bonds, the courts recognize them as property. That is true to a certain extent; but, although recognized as property, nonconstat that bonds and notes may be transferred in any other than the mode prescribed by law. Slaves are property; but slaves can only be transferred by gift in the manner prescribed by law.
There must be a venire de novo.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Marsh v. Brooks, post, 411; Brickhouse v. Brickhouse, post, 405;Herring v. Tilghman, 35 N.C. 393; Killian v. Carroll, ib., 433; Overtonv. Sawyer, 52 N.C. 6; Kiff v. Weaver, 94 N.C. 227.
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