Warne v. Hill , 7 Mo. 40 ( 1841 )

Opinion of the Court by

Tompkins,■ Judge.

Hill sued Warne in the circuit court by petition in debt, That court gave judgment for Hill, and to reverse it this appeal is prosecuted.

It is contended that the note sued on here, is not such an instrument in writing as by the law introducing this action was intended to be sued on in this form of action. The act provides that any person being the legal owner of any bond or note, for the direct payment of money or property, may sue thereon in any circuit court having jurisdiction thereof, by petition in debt. Page 447 of digest 1835. The note here sued on reads thus: “Sixty days after date I promise to pay to the order of J. B. Hill, negotiable and payable at the St. Louis Insurance Office, in St. Louis, Mo., two hundred and twenty-five dollars, without defalcation or discount, for value received.” It is contended that this description of note is withdrawn from the operation of the statute giving the action of petition in debt, by the construction of the 6th and 7th sections of the act concerning bonds and notes, p. 105 uf the digest of 1835. The said sixth section provides that every note for the payment of money, expressed on the thereof to be for value received, negotiable and payable without defalcation, shall be due and payable as therein expressed, and shall have the same effect, and be negotiable in like manner as inland bills of exchange. By the seventh section it is provided that the payees and endorsees of every negotiable note payable to them or order, and the holder of every such note, payable to bearer, may maintain actions for the sums of money therein mentioned, against the makers and endorsers thereof respectively, in like manner as in cases of an inland bill of exchange, and not otherwise. It is contended that by this provision, the holder of a promissory note would be required to sue in the same form of action as the holder of an inland bill of exchange; that is to say, in an action of assumpsit. Because, by the first section of the act giving the action by petition in debt, that action lies only on a bond or note for the direct payment of money. The sounder opinion seems to be, that the seventh section applies not to the form of action to be used by the holder of á negotiable nromissory note, but that he may maintain an action . . tor the sum of money therein mentioned, both against the maker and indorser respectively, and recover against them such damages as such holder could recover against the drawer or indorser of an inland bill of exchange. After the deck - ration made in the sixth section, that the notes expressed the face thereof to be for value received, negotiable and payable without defalcation, should be due and payable as in expressed, and should have the same effect, and be negc-tiable in like manner as inland bills of exchange, the act might have been thought defective, had it not been also provided that the holder might recover against the maker and the several endorsers as in cases of inland hills of exchange. But if the holder wished to proceed against the maker of a negotiable promissory note, there is no reason why the giver should deny him the right of using the more speedy action of petition in debt. The letter and spirit of the first section of the act for the speedy recovery of debts due on bonds and notes, gives the holder of the negotiable note ° s* r'®^t t0 Use act*on against the maker of such note, and is no good reason to be assigned why it should be taken away by the seventh section of the act concerning bonds and notes above cited. It is a more reasonable conclusion the legislature by the words used in the seventh section in-ten(ie^ onty to giye holders of negotiable notes such redress against the makers and endorsers thereof as was given against the drawers and indorsers of inland bills of exchange, leav-jng such holders to choose their own form of action, whe- , . , , . , ther given by the statute or the common law. I he judgment 0f cjrcuit court is therefore affirmed,

Petition in “ay ,b[J maintained by the holder bie^promisao-ry note, with-iu^ofthe^i of tflR fng bonds and against the there' ~ .. oftho j.i^nofto1"’ the. form of naed^y0 the ofs?e* a note, but edto give the holder the against*3 tíe^ maker anden-doraer respectively, as in casesofmland bills ol exchange.