Beatty v. Anderson

• Decision Date: 30 September 1838
• Parties: BEATTY v. ANDERSON.
• Court: Missouri Supreme Court

5 Mo. 447

BEATTY

v.ANDERSON.

Supreme Court of Missouri.

September Term, 1838.

ENGLISH, for Plaintiff in Error. The point which presents itself is, that it does not appear from the record that Beatty, the plaintiff, is the legal owner of the note sued upon. The objection is, that the name of Beatty does not appear in the note, and there is no assignment averred in the petition. The court will perceive that the note is payable to Mitchell, or bearer. It is a well established doctrine that notes payable to bearer are transferable by delivery, and that the individual named in the note as payee, is a mere cypher. 1 Wh. Selw. N. P. p. 286; 4 Bac. Abr. 703-4; Chit. Bills, 271-2, 178; 3 Kent's Com. 78. Being transferable by delivery, the legal title is thereby vested in the holder or bearer, and he is in law regarded as the original payee, and can sue in his own name. 2 Blacks. Com. 469; Chit. Bills, 251, note t; Swift Bills, 309; 3 Kent's Com. 78; Ballard v. Bell, 1 Mason's R. 252, cited in Chitty on Bills, 181, and 1 Selw. N. P. 292; Grant v. Vaughn, 3 Burr. 1516.

It being established then that by the common law the holder of a note payable to bearer, is the legal owner of the note; and the statute under which this suit is brought, providing that the legal owner of a note may sue by petition in debt, we ask that the judgment of the Circuit Court be reversed.

MCGIRK, J.

Beatty brought an action of debt by petition and summons in the Pettis Circuit Court. The defendant had judgment on demurrer to the plaintiff's petition. The petition is in the usual form, and states that Beatty, the plaintiff, is the legal owner of a note against the defendant, to the following effect, to-wit: “On or before the first day of November, 1838, I promise to pay Robert Mitchell, or bearer, two hundred and eighty-two dollars and twenty-eight cents, with ten per cent. interest thereon from the date till paid. Oct. 26, 1834. (Signed,) John Anderson.” Beatty, the plaintiff in error, appeared and assigned errors, and the defendant came not. The plaintiff in error insists that there can be no objection to his legal right to recover, and that although the note was made to Robert Mitchell, yet that the note being made to Mitchell or bearer, enables the plaintiff as bearer, to sue in his own name without any assignment to him.

Mr. English, for the plaintiff, rests his case on this position: that notes payable to bearer are transferable by delivery without any assignment, and that the name of the payee is to be considered as a mere cipher. To sustain this doctrine, he cites 1 Wh. Selw. N. P. 286; 4 Bac. Abr. 703-4; Chit. on Bills, 251-2, 178; 3 Kent, 78. I am well satisfied that the authorities will support the position.

But still it seems to me there is some mistake on the part of the plaintiff's counsel regarding the right of the party to recover; which mistake is this, that his doctrine only applies to negotiable notes made so by statute or by the law merchant, and that the rule does not apply to notes merely made assignable by statute. It appears to me that this note is only assignable. This note is only a common promissory note at common law, and by our statute of assignments may pass to the assignee, but in declaring, the assignee must set out his title. With a view to make...