Foote v. Bragg

Blackford, J.

Assumpsit by the assignees of a promissory note against the maker. Plea in bar, that Smith, the payee, assigned'the note as follows, “ Pay the bearer, — S. Smith;” and that the plaintiffs, without the knowledge or consent of Smith or of the defendant, erased the words,' “ Pay the bearer,” and inserted in their place, over Smith’s signature, a formal assignment to themselves. Replication, that Smith made the first indorsement, and delivered the note to the plaintiffs; that they were and still are the bearers and bona fide, holders of the note; and that they had a right to make the alteration. General demurrer to the replication and judgment for the defendant.

The payee, by indorsing the note to the bearer, and delivering it to the plaintiffs as the bearers, must be considered as having indorsed the note to ;the plaintiffs. By the term bearer, as the replication shows, the plaintiffs were desig *364 nated. The effect of the first indorsement was, therefore, the same with that of the second; and-the alteration was not material.

J. Ryman, for the plaintiffs. C. B. Smith and J. S'. Newman, for the defendant.

The defendant relies on M'Nitt v. Hatch, 4 Blackf. 531 . That case only decides, that the legal interest of a note payable to a certain person or bearer, cannot be transferred merely by delivery, unless it be payable at a chartered bank within the state. It has no application to the case before us.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.