Garvin v. Wiswell

• Decision Date: 30 September 1876
• Citation: Garvin v. Wiswell, 83 Ill. 215, 1876 WL 10322 (Ill. 1876)
• Parties: ISAAC W. GARVINv.WILLARD WISWELL.
• Court: Illinois Supreme Court

83 Ill. 215

1876 WL 10322 (Ill.)

ISAAC W. GARVIN

v.WILLARD WISWELL.

Supreme Court of Illinois.

September Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of De Kalb county; the Hon. THEODORE D. MURPHY, Judge, presiding.

Mr. CHARLES KELLUM, and Mr. JOHN J. MCKINNON, for the appellant.

Mr. W. D. BARRY, for the appellee.

Mr. JUSTICE CRAIGdelivered the opinion of the Court:

This was an action brought by Isaac W. Garvin against Willard Wiswell, to recover money which the defendant had received from the county treasurer of DeKalb county, in payment of a certain county bond and coupons attached, which the plaintiff claimed to own.

The bond and coupon were in the following form:

+------------------+
                ¦“No. 889. ¦$100.00¦
                +------------------+
                

+------------------------------------------------+
                ¦STATE OF ILLINOIS,¦)¦     ¦Board of Supervisors,¦
                +------------------+-+-----+---------------------¦
                ¦                  ¦)¦ss.  ¦                     ¦
                +------------------+-+-----+---------------------¦
                ¦DEKALB COUNTY.    ¦)¦     ¦September term, 1864.¦
                +------------------------------------------------+
                

Treasurer of DeKalb County:

On the first day of July, A.D. 1874, pay to John Murphy, or bearer, $100, out of the funds appropriated for bounties to volunteers, with interest at the rate of 8 per cent per annum from this date, upon the presentation of the annexed coupons.

Dated, January 1, A. D. 1865.

+---------------------------------------------------------+
                ¦Countersigned and registered,¦ ¦                         ¦
                +-----------------------------+-+-------------------------¦
                ¦                             ¦)¦AARON K. STILES, Clerk.  ¦
                +-----------------------------+-+-------------------------¦
                ¦R. A. SMITH, Co. Treasurer.  ¦)¦                         ¦
                +---------------------------------------------------------+
                

+-------------+
                ¦No. 1. ¦$8.00¦
                +-------------+
                

+---------------------------+
                ¦STATE OF ILLINOIS, ¦)¦     ¦
                +-------------------+-+-----¦
                ¦                   ¦)¦ss.  ¦
                +-------------------+-+-----¦
                ¦DEKALB COUNTY.     ¦)¦     ¦
                +---------------------------+
                

The treasurer of said county will pay $8 to bearer, on the first day of July, 1874, being one year's interest up to that date, on county order No. 889.Dated, January 1, 1865.

R. A. SMITH, Treasurer.

A. K. STILES, Clerk.”The plaintiff testified that he purchased of one Morris Holcomb, the bond, and paid for it, and, in the spring of 1870, he lost it.

It appears, from the defendant's evidence, that he purchased the bond in July, 1870, of one E. F. Dutton.The purchase was made by Pierce & Dean, defendant's bankers.The defendant had no knowledge, when he made the purchase, that the bond had been lost, or that plaintiff had any claim upon it.Indeed, it was admitted on the trial that the defendant was an innocent purchaser for a valuable consideration.

It is insisted, on behalf of the plaintiff, that, as the bond was payable to Murphy, or bearer, and was never indorsed by him, the legal title did not pass to the defendant, while, on the other hand, it is contended that the legal title passed by delivery.

Under the language of our statute in force at the time the defendant obtained the bond, we entertain no doubt it was a negotiable instrument.Sec. 3, Gross' Statutes of 1869, 461, declares, all promissory notes, bonds, due bills and other instruments in writing made or to be made by any person or persons, body politic or corporate, whereby such person or persons promise or agree to pay any sum of money, shall be taken to be due and payable, and the sum therein mentioned shall, by virtue thereof, be due and payable to the person to whom said note, bond, bill or other instrument in writing is made.

Section 4 declares, any such note, bond, bill or other instrument in writing, made payable to any person, shall be assignable by indorsement thereon under the hand or hands of such person, and of his, her or their assignee, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee or assignees successively.

The bond in question was an instrument in writing, whereby the county, by its officers, promised at a certain time to pay John Murphy a certain sum of money, and as clearly falls within the provision of the statute as would a promissory note.See, also, sec. 1500, vol. 2, page 435, Daniel on Negotiable Instruments, and cases cited in the note.

If the bond had been payable to bearer, we understand the law to be well settled that it could have been negotiated by delivery, without being indorsed.In such case the legal title to the instrument would pass the same as a bank bill, by mere delivery.Johnson v. Stark Co.24 Ill. 75;Jones v. Nellis,41 Ill. 482.

This bond was not, however, payable to bearer, but to John Murphy, or bearer, and it has been uniformly held, in this State, that a negotiable instrument, payable to a person named, or bearer, could not be transferred so as to vest the legal title except by...