Hutchings v. Low

The opinion of the court was delivered by Justice Drake.

Drake, J.

An action was commenced by the plaintiff, as bearer of a check, drawn by the defendant on the cashier of the Bank of New Brunswick, payable to one C. S. Hutchings, or bearer. The state of demand filed in the justices’ court, in setting out the transfer, alleged that the said C. S. Hutchings, “ duly transferred, assigned, and delivered the said draft or order, to the said plaintiff, who thereby became,” &c. There was a trial and judgment in the court below, for the defendant, upon which an appeal was taken to the Inferior Court of Common Pleas of the county of Middlesex. On the trial of the appeal, the check, after being proved, was offered in evidence and objected to on the ground “ that there was no assignment on said check, and that it is not the check described in the plaintiff’s state of demand.” Upon comparing the instrument with the state of demand, no variance is apparent, unless it be in the allegation of assignment, and I presume that it was for a supposed defect in the proof of that allegation, that the evidence was overruled; and that the correctness of that decision is the point now intended to be submitted to this court.

Without enquiring how far such an objection should prevail if the word assigned necessarily imported a written transfer, I am of opinion that the court below erred in their construction of that term. An assignment does not necessarily imply, or require writing. And when alleged of any subject, it should *248 always be construed in connection with the law of transfer, applicable to that particular subject matter.

A note payable to bearer is negociable by delivery, and this creates a property in the assignee, or bearer — Grant v. Vaughn, 8 Burr. 1524. That was an action by the bearer of a bill, payable to bearer, and not endorsed, yet Justice Yeates says, that “ whether the plaintiff can maintain this action, depends upon its being assignable or not.” Chitty says, such a note is in legal operation assignable by endorsement, or by mere delivery. Chitty on bills, 146.

“ Assignment is the setting over or transferring the interest a man hath in any thing to another.” Jacob's Law Diet. 1 Vol. 139. And see his title assigns, or assignees.

“ Assignees are in fact or in law.” Com. Dig. Assignment B. —executors, administrators, heirs, &c. are assignees in law.

A mortgage may be assigned by mere delivery, without writing. 1 John. Rep. 580, 591 .

The books are full of instances of this use of the term assigned. I am of opinion that in this case the allegation was sustained by the proof offered; and that therefore the judgment of the Common Pleas should be reversed, and the cause remitted to that court, that they may proceed therein according to law.

Approved in Allen v. Pancoast, Spencer, 71; Cited in Winfield v. City of Hudson, 4 Dutch. 264; Morris Canal & Bank. Co. v. Fisher, 1 Stockt. 686-696; Hutchings v. Low, 2 C. E. Green, 140.