White v. Tarbell ( 1855 )

The opinion of the court was delivered by

Bennett, J.

We see no objection to the declaration, which can prevail on general demurrer.

The note is declared upon as a note payable to Luther Perigo or bearer, and the declaration avers that the plaintiff is the bona fide owner and bearer of said note. Though it was once doubted in this state, yet it has long been the settled law that, upon a note payable as this is, the bearer may maintain an action on it, in his own name, without an endorsement of it.

This declaration is much like the one in Dole v. Weeks in the 4th of Mass. 451, which was held well enough upon general demurrer. In that case, however, it was simply averred that the plaintiff was the hearer of said note, and the court said they would presume the plaintiff was the lawful bearer of it. But in the case before us, it is alleged the plaintiff was the bona fide owner and bearer of the note. The only doubt I had, at the hearing, was whether the plaintiff should not have alleged a time when the note was payable. In the declaration, the plaintiff has, doubtless, followed the form of expression as to the promise which is used in the note. In the case of Bacon v. Page, 2 Conn. 404, it is true, it was held that in declaring upon a note, where no time was mentioned when it was payable, it was necessary to allege that it was payable on demand, and, that, unless it was so alleged, it was declaring upon the evidence, and not according to the legal effect of the promise, and it was said that it did not appear from the declaration that the note had become payable.

But in Herrick v. Bennett, 8 Johns. 374, it was held sufficient to declare upon a note according to its terms, and, that when no time of payment is mentioned in the note, it is payable immediately and that this was a conclusion of law. So in the case of Sheehy v. Mandeville, 7 Cranch. 208, 217 ; the declaration alleged no time when the note was payable, and Ch. Justice Marshall says, “ the legal effect of the promissory note is stated, and that “ the effect on a note having no day of payment would he, that it was “ payable immediately.” See also Okie v. Spencer, 2 Wharton, 253, 260.

We think on the whole, then, that this declaration is according to the legal effect of the note, and is not declaring upon the evidence, as is said in the case in the second of Connecticut. We are to presume, upon the demurrer, that the plaintiff has stated his note according to its terms.

The judgment of the county court is affirmed.