Brooks v. Edson , 7 Vt. 351 ( 1835 )

The opinion of the court was delivered by

Collamer, J.

Bills of exchange were negotiable by the law merchant, and in a particular manner, by an order or appointment of the contents to be paid, fee. In relation to bills resting both in England and here upon the law merchant as a part of the common law, perhaps it would be necessary to declare in the manner insisted on by the defendant’s counsel, and as the authorities by him cited seem to imply; for in that case, the plaintiff’s right of recovery arises from the contract. Notes of hand rest on a different law. The right of action is given by statute, and does not simply arise from the contract; and if the declaration contains sufficient allegations to show the plaintiff is entitled by the statute to recover, it is sufficient. The statute 3d and 4th Anne, after providing that the payee of a note may maintain an action on the note in his own name, as he might do on an inland bill of exchange, provides that any person to whom such note is endorsed or assigni d, or the money therein mentioned ordered to be paid by endorsement thereon, may maintain his action in like manner as in case of inland, bills of exchange. For some time after the passage of this act, it was considered by the profession that notes were put on the ground of bills of exchange, and the mode of declaring either by the payee or the endorsee was to state the execution of the note, &c. the liability by the custom of merchants, and then raise an assumpsit; and so are many of the ancient forms.

On a more full examination and liberal view of the statute, and in pursuance of the growing liberality and conciseness of modern pleading, the forms of declaring on notes of hand have essentially changed. It is now consHered that the action may be on the note, and assumpsit may be sustained on the promise contained in the note, without stating a liability, and then raising an assumpsit there—Binney and Broadhead vs. Plumley, 5 Vt. Rep. 500.

The statute provides that an action may be sustained by any one to whom it is endorsed or assigned, or the contracts ordered to be paid. Here are three distinct provisions. Formerly on the same yiew that notes were put simply on the ground of bills, the declaration was on the last clause, and formally set forth that the contents were appointed or ordered to be paid by endorsement thereon, &c., then stated that thereby and by the custom, &c. the defendant had become liable, and then raised an assumpsit. Gradually this was relaxed, and now it is the practice to sustain the action on the other clause of the statute, to wit, the person to whom fhe same is endorsed, or if the note be to bearer to whom it is assigned, which may be by delivery. As endorsee of a note, it is necessary to allege, in order to entitle the plaintiff to recover, not so much what would give him the action by the contract but by the ,statute, For this purpose, it is but necessary to show the defendant executed such a note as is within the statute, and that the plaintiff is the endorsee thereof. ’ The form given by Mr. Chitty (Plea. vol. 3, p. 13) for an endorsee of a note is this: “And the said G. H. then and there endorsed and delivered said note to one J. R., who then and there endorsed and delivered the said note to the plaintiff.” And in his note he says, “ this concise mode of sta-ting the endorsements will in all cases suffice.”

By our statute, which makes no provision like the statute of Anne for the payee to have an action on the note, provision is made that the endorsee may maintain the action. All that can be neces•sary under our statute on this point is, to show the plaintiff to be endorsee, as under the statute of Anne. That the payee did .endorse and deliver the note to the plaintiff, is all that can be ■necessary ; as the word endorse is a technical word, having in law a distinct meaning, without the declaration explaining the mode or .manner in which it was dope,

Judgment affirmed,