Kinyon v. Wohlford

By the Court.

Berry, J.

This is an action upon a promissory note payable by its terms to C. W. Stevens, or bearer, and signed by the defendant.

There was plenary evidence showing that the plaintiff is a bona fide holder of the note, having purchased the same before maturity in good faith, without notice and for value.

The only defence urged here is that there Avas no delivery *240 of the note to any person by or on behalf of the defendant; that for want of delivery it is not the note of defendant, and he is not liable thereon even to a bona fide holder. “A bona fide holder for value, without notice, is entitled to recover upon any negotiable instrument which he has received before it has become due, notwithstanding any defect or' infirmity in the title of the person from whom he derived it; as, for example, even though such person may have acquired it by fraud, or even by theft, or by robbery.” Story on Prom. Notes, § 191; 2 Gr. Ev. § 171; Swift vs. Tyson, 16 Pet., 1; Goodman vs. Symonds, 20, Howard 365; Raphael vs. Bank of England, 17. C. B. 162; Wheeler vs. Guild, 20 Pick. 545 ; Magee vs. Badger, 34 N. Y. 249; Powers vs. Ball, 27 Vt., 662 ; Catlin vs. Hamon, 1 Duer 325; Gould vs. Seger, 5 Duer 268 ; Marston vs. Allen, 8 Mees. & Welsby 494; Sm. Lea. Ca. [597] et. seq.; 1 Ross Lead. Cases 205, et. seq.

The fact that there has been no delivery of the instrument by or for tho ihaker, or by or for an indorser through whom the holder must claim, is a defect or infirmity of title within the meaning of the rule above cited, a rule which is said to be laid up among the fundamentals of the law. Worcester County Bank vs. Dorchester and Melton Bank, 10 Cushing 488 ; Edwards on Bills & Notes 188; Gould vs. Seger, supra; Ingham vs. Primrose, 7. C. B. (N. S.) 82; Shippey vs. Carrol, 45 Ill. 285; Clark vs. Johnson, 52 Ill.

The order denying a new trial must be reversed.