Prioleau v. South Western Rail-road , 16 Ga. 582 ( 1855 )

By the Court.

Starnes, J.

delivering the opinion.

Something was said in the argument, to the effect that the Court below had decided a question of fact which should have been submitted to the Jury. But this was not insisted on as error in that Court, and we must confine ourselves to the record.

[1.] The first ground of error brought to our attention by that record is, the decision of the Court that a bond under seal is assignable by indorsement in blank.

The bond before us was executed, indorsed and negotiated in the State of South Carolina; and the law of that State, the lex loci contractus, must control the question.

1. Let us, then, ascertain whether or not this bond by the law of the contract, was negotiable ?

It is made payable to the payee and his assigns, and such a bond is negotiable in South Carolina. Indeed, it seems that an Act was passed by the Legislature of that State, in the year 1808, for the purpose of making all bonds negotiable, however made payable, and authorizing the assignee to sue upon them. (2 Faust 215. 1 Brev. Dig. 96. Farmer vs. Baker & Leach, 3 Brev. R. 548.)

We know that in Georgia such an instrument would be negotiable by the terms of the Act of 1799. 2. We must next inquire whether or not this bond was negotiable by blank indorsement. It would seem that upon elementary principles, as was held by Judge Fleming, the effects of an indorsement, in blank, upon any negotiable paper, upon an instrument payable to A B and his assigns, for example, is equivalent to a transfer or assignment of the same. The effect of it, is, in short, but a permission to the assignee to write over the indorsement whatever is. necessary to give him right and title. Such is certainly the signification of an indorsement upon a promissory note, according to the Law Merchant.

At all events, such is the law of South Carolina, and it governs this question. Stoney vs. McNeil, (Harp. R. 156.)

It is made the law of our State, too, if it were not so upon general principles, by the 25th section of the Judiciary Act of 1799, which declares that “all bonds and other specialties and promissory notes, and other liquidated demands, bearing date since the 9th day of July, 1791, whether for money or other thing, shall be of equal dignity, and be negotiable by indorsement, in such manner and under such restrictions as are prescribed in the ease of promissory notes.”

[2.] We are next asked to decide, whether or not a bond under seal can be assigned or transferred only by an indorsement or assignment under seal.

The rule that a sealed instrument can be transferred only by an instrument under seal, seems not to have been well settled or universal at Common Law. (Crok. Eliz. 436. 3 Rep. 63.) The same appears to have been rigidly enforced only where the transfer was of the fee to real estate. (Runyan vs. Mersereau, 11 John. 534. Dawson vs. Coles, 16 John. 51.)

However this may be, the law is well settled in South Carolina, that a bond may be transferred by assignment not under seal. Howell vs. Bulkley, (1 N. & McC. 250.)

'[3.] It was also insisted that error was committed by the Court below, that the power of Attorney to transfer a bond under seal need not, itself, be under seal.

This point is influenced by that last considered. If the payee or assignee may assign without a seal, there seems to be no good reason why a seal is necessary to the appointment of an agent or Attorney to do so for him — no reason why greater solemnity should be required in the qualification of the agent, than in the execution of the act which the .agent is to perform.

[4.] And, finally, it is complained that the Court erred in holding that the entry of satisfaction on the bond and mortgage was invalid.

The entry of satisfaction which is relied upon by the plaintiffs in error, was made by Henry A. Middleton, on the 12th day of February, 1844, in the Secretary of State’s office in Charleston, So. Carolina. It appears, however, from the record before us, that on the 28th day of November, 1837, under an order and decree of the Court of Chancery, Middleton assigned and transferred this bond to Francis Kinloch Huger and Francis Kinloch, as trustees; and this decree and assignment appear, here, unimpeached and of full force and effect. Subsequently, Francis Kinloch Huger, by Attorney, as surviving trustee, indorsed and transferred the bond to the Bank of Charleston, from whom it passed to the defendant in error. This assignment to the Bank of Charleston, as appears by a memorandum on the bond, was made on the 2d day of January, 1843. That it was legal, we have decided.

Under these circumstances we do not see, nor have we been told, how Henry A. Middleton could have had any right, after he had assigned the bond in obedience to the decree directing him so to do, to have made this entry of satisfaction; and especially do we not see how this could have affected the rights ■of the assignees who had received a negotiable security, by a ¡prior indorsement' and 'assignment.

Let-the judgment be affirmed.