Tillman v. Ailles ( 1845 )

Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Copiah county circuit court.

This was an action against the defendant as the indorser of a promissory note, made payable “ to Lewis Kennedy or bearer,” from whom defendant received the note by delivery, and without his indorsement. The court below charged the jury, that the indorsement of Kennedy upon the note was essential to authorize the plaintiffs to recover in the action.

A note payable to bearer passes by mere delivery, and the holder claims his title to the note by virtue of being its bearer, and of the promise and contract between the maker and bearer. The circumstance of making the note payable to any person or bearer, does not compel the holder to show an indorsement by that person, since it is payable in the alternative, and not to that person absolutely. In such case it is transferable by mere delivery. Chit. on Bills, 251; Bullard v. Bell, 1 Mason, 243.

The note, in this instance, was negotiable and transferable without indorsement; nevertheless, if the defendant indorsed it, he made himself liable on his. indorsement, Bank of England v. Newman, 1 Ld. Raym. 442. In this case, also, the defendant, by his pleadings, admits the character in which he is sued.

The objection, that the jury consisted of thirteen individuals, is not ground of error. A verdict by a less number than twelve, in issues of this kind, would be void, but a verdict of a- greater number than twelve is not so on that account.

Judgment of the court below is reversed, and new trial awarded.