#### *Myers and Son v. Friend and Scott.

December, 1821.

Treasury Note — How Transferable.† — A treasury note is, by the act of Congress, transferable by delivery and assignment only.

Same — Recovery by Detinue;‡ - Case at Bar. — Where a treasury note was assigned by the payee by endorsement in writing to A. B.. or order, then transferred by a blank endorsement by A. B., afterwards endorsed in full by C. D., (into whose hands it had regularly come,) to E. F.; this note being afterwards stolen from the mail, and coming by a series of endorsements into the hands of a bona fide assignee, may be recovered in an action of detinue brought by C. D„ against the holder.

This was an appeal from the Superior Court of Prince George county. In that court, Myers and Son brought an action of detinue against Friend and Scott for a certain treasury note numbered 3562, dated the 11th day of October 1814, and made payable the 11th day of October 1815, being for the sum of $1000; which note was made payable to James Barbour or order at Washington, and by him endorsed on the back as follows: “Pay to George Rowland or his order, James Barbour.” Under this endorsement, there was a blank endorsement by the said Rowland, thus;— “George Rowland.” ■ Myers and Son, being regularly possessed of the said note, under the last mentioned endorsement, made the following endorsement under the name of the said Rowland; — “Pay to the Cashier of the Branch of the State Bank of North Carolina at Newbern, or order. Moses Myers and Son.” The said note, thus endorsed, was enclosed in a letter by mail to the said Cashier at Newbern; but the mail in which it was conveyed, was robbed; the letter and note taken out; and the note, by means unknown, came to the possession of one Jackson, who transferred the same to Chappell, who transferred it to Parish, who transferred it to James H. Hardaway, a merchant of Brunswick, who received the same in the ordinary course of business and for a valuable consideration without any notice of the loss by the plaintiffs ; unless an advertisement *inserted in the Petersburg Republican (a newspaper of Petersburg, in which town the defendants reside) and other papers, should be deemed a notice. The note afterwards came regularly to the hands of the defendants. After the institution of this suit, the defendants erased all the endorsements subsequent to the blank endorsement aforesaid by George Rowland, so that only the endorsements of Barbour and Rowland remained on the said note, at the trial; but the endorsement of the plaintiffs to the Cashier aforesaid, though erased, was still legible.

The jury who tried the cause, found a special verdict, setting forth the facts above stated, and submitting the law arising from them to the decision of the court.

The court pronounced judgment in favor of the defendants, and the plaintiffs appealed to this court.

M. Robinson, for the appellants.

May and D. Robertson, for the appellees.*

†

Negotiable Instruments — Special Endorsement— Right of Action. — If a negotiable instrument, not payable to bearer, be endorsed specially to a particular person, while such person remains the holder and legal owner, the right of action is in him alone, and none but he, or his personal representative, can sue. Spence v. Robinson, 35 W. Va. 313, 13 S. E. Rep. 1006. citing principal case. See principal case also cited in Wilkinson v. Holloway, 7 Leigh 297.

See further, monographic *note*on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.

‡

Detinue. — See monographic *note*on “Detinue and Replevin” appended to Hunt v. Martin, 8 Gratt. 578. To the point that detinue lies for any writing, the principal case is cited in Gibbs v. Usher, 10 Fed. Cas. 305.

*

The argument in this case must he omitted for the reason assigned in the last case. — Note in Original Edition.

JUDGE ROANE,

delivered the opinion of the court:

The court is of opinion, that as the treasury note in question is, by the act of Congress, providing for its emission, transferable by delivery and assignment only, it could not have been transferred originally, without such an assignment. A property in it could not have been acquired as against the true owner, by a mere possession thereof, even for a valuable consideration actually paid. This privilege only attaches as against the true owner, in relation to bank notes, or cash notes payable to bearer, or -notes endorsed in blank, and which thereby become, in effect, payable to the bearer: and it only attaches in consideration of the cash quality which these papers have, and from their circulating in currency by mere delivery *only, and being generally, if not universally, considered, as money. This ground of claim was sanctioned in favor of the bona fide holder of such papers, in the case of Wilson v. Rucker.(a) But, it was also held that it did not extend to include military certificates, which were only considered as mere documents of debt, and not as cash or currency. It did not include them, although it was found by the verdict in that case, that there was a general custom that they could be transferred by delivery only, without assignment. No such custom is found in relation to the note in question; and, therefore, that case is more than an authority for ousting this note from the privilege now claimed. In this respect, this case is much weaker than that of Wilson and Rucker; and considered in relation to its original state, the claim of the appellee would be clearly repelled.

The court is also of opinion, that this character of the paper was not changed by the endorsement of Barbour to Rowland, or his order: and if a greater negotiability should be held to have -been given to it by the blank endorsement of the latter, that negotiability might be again restrained by a special endorsement, and the note *12thereby brought back to its original state. The endorsement to the Cashier of the Bank at Newbern “or his order,” is not different from that of Barbour to Rowland “or his order,” which preceded the blank endorsement of the latter, and, as is before said, transferred no property by a mere delivery. The case of Ancker v. The Bank of England;(b) shews, that such a restriction may be made; that the negotiability of a bill or note may be stopped or lessened; and that, in case of a special or restricted endorsement, the receiver is bound to read it at his peril, and see that he comes within the authority comprized in it. In the case before us, the appellee should have deduced his title to the note under that cashier to whom it was confided and endorsed. He could acquire no property in it **from another; from a man who only had the possession of it. He therefore had no right to strike out the last endorsement, but that right appertained to the present appellants; and by striking out the name of the cashier at Newbern, to whose hands it had never come, and who was to be the mere agent of the appellants, they entitled themselves to bring this action.

We are therefore of opinion, that the law on this special verdict is for the appellants, and that the judgment of the Superior Court is erroneous and should be reversed, and entered for the appellants.

(a)

1 Call, 500.

(b)

 Doug. 637.