Page:Federal Reporter, 1st Series, Volume 3.djvu/374

 BALSET ». TÔWNSHIP OF NEW PEOTTDEKOB. 867 �and pass from hand to hand without assignment, and hence corne within the spirit, if not the letter, of the exception stated in the act. �The observations of the learned judge (Story) in BuUard v. Bell, 1 Mason, 243, 262, although suggested in reference to notes issued by a banking institution, are quite pertinent to the case of municipal bonds. He says: "A note payable to bearer is of ten said to be assignable by delivery ; but, in cor- rect language, there is no assignment in the case. It passes by mere delivery, and the holder never makes any title by or through any assignment, but claims merely as bearer. The note is an original promise by the maker to pay any person who shall become the bearer; it is, therefôre, payable to any and every person who successively holds the note bona fide, not by virtue of any assignment of the promise, but by an original and direct promise moving from the niaker to the bearer." �To the same eiffect was the opinion of the supreme court in the case of Smith v. Clapy, 16 Pet. 125, where it was held that the plaintiff, to whom had been assigned a promissory note payable to A. B., or bearer, was not an assignee, within the provisions of the eleventh section of the judiciary act, although, in the declaration filed, he had averred that the note had been duly assigned over and delivered to him, whereby he became the bearer, etc. The court said it waa obvions, from the fact that the note waa payable to bearer, that the assignment was by delivery merely, and not by indorsement, which must be in writing, and hence that the holder did not come within the prohibition of the law. See, also, Bradford v. Jenks, 12 McLean, 130; White v. RaUroad Co. 21 How. 675; Thompson v. Lee Co. 3 Wall. 327; and City of Lexington v. Butler, supra. �Taking this view, it is not necessary to consider whether the several pleas, to which the replication is an answer, show any defence to the declaration. The court has heretofore expressed its opinion fully upon the question, iû previons Buits of a like character, on motion to strike ont Bùteh pleas. �The demurrer is overruled. ����