Page:Bradley v. Trammel.pdf/3

166 Rh   note to be indorsed to enable the assignee to sue in his own name. To dispense with an indorsement, which is a written assignment on the back of the note, (Guslone v. Williamson, 2 Bibb, 83,) and permit the assignee, by delivery merely, to bring the action and in his own name, would be to dispense with one of the plain and positive requisitions of the statute.

How is the assignment set out in the present declaration? "That the said Jackson transferred and delivered the said note to the plaintiff, who thereby became the lawful bearer thereof." This may be true, and still the note may not have been indorsed; and the action cannot be maintained under our statute in the name of the assignee unless he is also the indorsee.

The conclusion, then, to which we have arrived, is, that the plaintiff cannot maintain this action by virtue of our statute authorizing the assignment of bonds, bills, and promissory notes.

Can he maintain the action according to the principles of the common law? Stewart Kyd, in his treatise on bills of exchange and promissory notes, p. 18, makes the following remarks: "A promissory note may be deﬁned to be an engagement in writing to pay a certain sum of money mentioned in it, to a person named, or to his order, or to the bearer at large; and at ﬁrst these notes were considered only as written evidence of a debt; for it was held that a promissory note was not assignable or indorsable over, within the custom of merchants, to any other person, by him to whom it was made payable; and that if, in fact, such a note had been indorsed or assigned over, the person to whom it was so indorsed or assigned, could not maintain an action, within the custom, against the person who,ﬁrst drew and subscribed the note; and that, within the same custom, even the person to whom it was made payable could not maintain such action. But, at length, they were recognized by the legislature, and put on the same footing with inland bills of exchange, by the 3 and 4 Anne, chap. 9; made perpetual by 7 Anne, chap. 25.

In the case of Walmsly v. Child, 1 Ves. sen. 341, Lord Chancellor Hardwicke says, "Where a note is payable to him or bearer, the bearer of the bill or note has not such a property as