Elkinton v. Fennimore
| Decision Date | 01 January 1852 |
| Citation | 13 Pa. 173 |
| Parties | Elkinton versus Fennimore. |
| Court | Pennsylvania Supreme Court |
This is a proceeding commenced before an alderman, under the $100 act of 1810. A judgment was rendered against the defendant, after the examination of witnesses on part of plaintiff below, on the day appointed for hearing, of which the defendant was duly notified. Upon his application, afterwards, the judgment was opened, and a new trial granted, upon which trial judgment was again rendered in favor of plaintiff. From this judgment the defendant appealed to the common pleas. The plaintiff filed his declaration, containing several counts, to which the defendant pleaded; and the cause being on the trial list, and the defendant not appearing, the judgment of the alderman was affirmed by the court, under the 2d rule of the common pleas, which is as follows: "On appeals from the judgments of justices and aldermen, on the calling of the trial list, if the defendant does not appear, and the plaintiff does appear, the court may affirm the judgment of the justice or alderman." We see no objection to the power of the court to make such a rule, nor any valid reason against its propriety. There was no trial in court nor judgment pronounced upon the pleadings as they existed in court: no action of the court founded upon those pleadings. The plaintiff in error files two exceptions:
1st. Upon the face of the record, the plaintiff below had no cause of action against the defendant, the instrument declared upon not being negotiable. This assignment of error, if valid, will apply to the record before the justice, because the indorsee brings the action in his own name against the indorser. The plaintiff in error cites the case of McCormick v. Trotter, 10 S. & R. 94; to show that the holder of a promissory note not negotiable, cannot sue in his own name; but that was a suit against the maker of the note, which renders the case totally different from the present. He cites, also, the case of Fahnestock v. Schoyer, 9 Watts 102, to establish that the holder cannot maintain an action in his own name on a note for specific goods, transferred to him by indorsement. But that was a check or draft, accepted by the defendant, payable in specific goods, and indorsed, after acceptance, where it was ruled, that the holder could not maintain an action in his own name against the acceptor, because he, the acceptor, was entitled to set off against the plaintiff, and because the note was not negotiable. That, however, is the same principle as McCormick v. Trotter, the acceptor being in the same category as the maker of a note. The case of Gray v. Donahoe, 4 Watts 400, only establishes that a note payable in current bank-notes, is not negotiable, and cannot be transferred by an indorsement in blank. Here, the indorsement by Elkinton is "pay the bearer," which is equivalent to an assignment.
More apposite to the present case is Rankin v. Woodworth, 2 Watts 134, where it was held, that the holder of a note, which is payable to bearer, may maintain an action in his own name. And still more apposite is the case of Leidy v. Tammany, 9 Watts 353. A promissory note payable to A., without words of negotiability, was, some time after it fell due, indorsed by A., and payment demanded by the...
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Humbert v. Chopy
... ... which the articles named were given an agreed value in the ... contract. There are many cases like it: Elkinton v ... Fennimore, 13 Pa. 173; Taplin v. Packard, 8 Barb ... (N.Y.) 220; St. Louis Co. v. Soulard, 8 Mo ... 665; McKinnie v. Lane, 230 Ill. 544, ... ...
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Blake v. Wilson
... ... this court: Baring v. Shippen, 2 Binney 154, 167; ... Overseers of Roxborough v. Bunn, 12 S. & R., 292, ... 294; Elkinton v. Fennimore, 13 Pa. 173, 176; ... Danley v. Danley, 179 Pa. 170; Malin v ... James, 244 Pa. 336; Chartiers Creek Bridge, 235 Pa. 365 ... ...