Fairly v. McLean
| Citation | 11 Ired. 158,33 N.C. 158 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 30 June 1850 |
| Parties | JOHN L. FAIRLY v. MARGARET McLEAN. |
OPINION TEXT STARTS HERE
The interest in a bond payable to A., or to A. or order, can only be transferred at law by indorsement.
Appeal from the Superior Court of Law of Richmond County, at the Spring Term 1850, his Honor Judge SETTLE presiding.
Banks, for the plaintiff .
Winston, for the defendant .
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 endorsement in the same manner as promissory notes; and, by the act of 1762, promissory notes are made assignable in the same manner 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 endorsement and delivery. Baily on Bills 98.
The result is, that the two bonds in controversy were negotiable by endorsement and delivery. In that way, and in that way only, can the right of property be transferred. Both acts must concur. An endorsement, without a delivery will not effect the transfer. Nelson v. Nelson, 6 Ired. Eq. 409. And for the same reasons the tranfer is not perfected by delivery without endorsement.
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 mere “chose in action,” an ideal thing--giving certain right to the owner--and although Courts of Equity, from an early period, have given protection...
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Kiff v. Weaver
...may be recovered at law in an action of trover by the personal representative of the donor, and he also relied upon the cases of Fairly v. McLean, 11 Ired. 158, and Brickhouse v. Brickhouse, Ibid., 404. The two latter named cases, were actions of trover for the conversion of unindorsed prom......
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Herring v. Tilghman
...in the name of Mosely. The property in a note payable to A, or to A, or order, can only be transferred at law by endorsement. Fairly v. McLean, 11 Ired. 158. The second count, for the conversion of the proceeds of the note, viz: the money collected by the defendant, cannot be sustained; bec......