#### Allen Keith, Jr. *vs.*The Executors of William L. Keith.

*Promissory Notes*— Jurisdiction.

A promissory note, drawn payable to the drawer or bearer, is void at law as against the drawer, but in Equity the holder may be entitled to recover.a

BEFORE WARDLAW, CH., AT PICKENS, JUNE, 1858.

Petition to recover the amount of a promissory note, given by the testator, William L. Keith, to the plaintiff, in place of another note which he had given him for money loaned. The following is a copy of the promissory note, the amount of which the plaintiff now claimed:

“ One day after date, I promise to pay W. L. Keith or bearer, two hundred and nine dollars and fifty-five cents, for value received. This 27th March, 1854. W. L. Keith.”

His Honor decreed for the plaintiff.

*84The defendant's appealed, and now moved this Court to reverse the decree.

Harrison, for appellants, cited *Devore vs. Munday,*5 Strob., 15; *Tuten'vs. Ryan,*1 Sp., 240.

*Reed,*contra, cited *Glenn vs. Caldwell, 4*Rich. Eq., 168.

With deference, it is submitted, that the cases cited do not, other authorities being considered, fully sustain the decision. In *Glenn vs. Sims,*the instrument held void at law was a sealed note, and in *Devore vs. Munday,*it was ruled that the instrument sued on was valid. The Judge, delivering the opinion of the Court, in *Devore vs. Munday,*does say, that a promissory note payable to the drawer or bearer, would be void, but this was said obiter, and no authority, except *Glenn vs. Sims,*is cited in support of the dictum. The law in relation to negotiable instruments contains principles very different from those affecting the validity of sealed instruments. It is not very unusual for merchants to draw bills, payable to their own order, and then transfer them by endorsement, and it is common for banks to take checks, payable to the drawer or bearer, when the drawer comes to receive his own funds. But the authorities would seem to be very strong. In Chit. Jun., on Bills, at page 7, it is laid down as familiar law, that “ The bill may be made payable to the drawer or to a third person.. It is not essential that either should be named, provided the bill be made payable to the order of the drawer (when in effect it is payable to him) or to bearer,” and at page 22, it is said, these observations “ are equally applicable to promissory notes.” To the same effect, see Story on Prom. Notes, g 34, 36, 39 ; Chit, on Bills, 83; Byles on Bills, 5, and Amer. Notes.

T.he opinion of the Court was delivered by

Dunkin, Ch.

In 1849 or 1850, the petitioner loaned to the late William L. Keith the sum of $200, for which he gave him his promissory note, payable with interest. The note being unpaid and nearly out of date, the petitioner, in March, 1854, sent his brother to the maker for the purpose of obtaining payment, or procuring from him a renewal of the note. William L. Keith, on this application, gave to the agent of the petitioner a new note, bearing date 27th March, 1854, for $209 55, payable, with interest, one day after date, to the said William L. Keith, or bearer. Upon receiving this note, the plaintiff’s agent delivered up to the said William L. Keith the original note. William L. Keith died in 1856; and the defendants are executors of his will. The note remaining unpaid, and the plaintiff, being advised that, in consequence of the form of the note, he could maintain no action at law, filed this petition to obtain payment, and a decree was made accordingly.

From this judgment the defendants appealed on the grounds:

1. That the note 27th March, 1854, was void in law.

2. That the plaintiff has a plain and adequate remedy at law, if entitled to aid in any jurisdiction.

The first proposition, has the authority of *Glenn vs. Sims,*1 Rich., 34, which was also recognized in *Devore vs. Munday, 4*Strob., 15, where it was ruled that, on a promissory note, payable to the maker or bearer, the holder could maintain no action at law against the maker. But, in the principal case, *85
      *(Glenn vs. Sims,)*the Court, after adverting to the reason of the rule, proceed to say that “in all such cases the proper relief is administered by the Court of Equity, which has power to proceed upon the original contract; while this Court is confined to the written form to which such contract has been reduced.” Accordingly, upon application to the Court of Equity, ample relief was afforded to the plaintiff, as will be seen in the report of the case under the title *Glenn vs. Caldwell, 4*Rich. Eq., 168.

It is ordered and adjudged that the decree of the Circuit Court be affirmed, and the appeal dismissed.

Johnston and Wardlaw, CC,, concurred.

*Appeal dismissed.*