The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-03-04


Across face is written accepted pay.
able at Capital State Bank, Jackson
Miss. WILDER & FUTILE.
Endorsed, amazon Hosiery Co."
The plea avers that prior to notice OF
transfer the acceptors had paid the same
and states the mode of payment.
That the bill sued on is domestic COM
mercial paper must be admitted.
1t is clear that the Legislature had
power by statute to place any limitations
or restrictions upon the negotiability of
such paper. If such statute exists, and
the Supreme Court of the State has con-
strued it, such construction will be fol-
lowed by this Court.
Section 1924 of Code of 1880, which is
substantial copy of the former statutes
on the same subject is as follows:
"All promissory notes, and all other
writings for the payment of money, or
other thing, may be assigned by endorse
ment, whether the same be payable to
order or assigns or not, and the assignee
or endorser, may maintain such action
thereon, in hisown name, as the assigner
or endorser could have maintained; and
in all actions upon such assigned
other writing for the payment of money
or other things, the defendant shall be
allowed the benefit of all want of lawful
consideration, failure of consideration,
payments, discounts and setts-off made,
had or possessed against the same, pre-
vious to the notice of assignment, in the
same manner as though the suit had
been brought by the payee; and the
assignee or endorser of any such instru-
ment may maintain an action against
the person or persons who may have
endorsed the same, as in case of inland
bills of exchange; Provided that when
any debt shall be lost, by the negligence
or default of any assignee or endorser,
the assigner shall not be liable on such
assignment or endorsement"
The sole question to be considered is,
does the alleged payment constitute a
defense to the action, and its solution
depends upon the proper construction
of this statute.
That the statute applies to all notes,
bills and other written promises as were
net assighable before is passage is con-
ceded. 1t is settled that it does not
apply to a note or bill payable to a
person desigoated or bearer Craig Vicks-
burg 81. Mss, 2l6.
The application of this statute, or
those of which it is a substantial copy,
to paper made assignable by reason of
its enabling terms and which was not
assignable without it, has frequently
been considered by the High Court of Err
rors and Appeals and the Supreme Court
of this State. Oldham .. Gocke l. HoiC
A
The case of kershalo q. BaAxx,7 Hrlo
3S7, relied upon by defendants holds
that domestic bills of exchange as well as
that class of paper specialy,mentioned, ,fal
within the statute. The action there
was upon bill of exchange; the plea
was sett-off; it is not shown whether the
bill was payable to order or not, but from
the language used by Chief Justice
Sharkey, it must be inferred that it was
not payable to order Therefore only
assignable by reason of the enabling
statute. The Chief Justice says: "an
inland bill, not payable to bearer or order
Is no doubt negotiable instrume 1t, but
1t is only SO by operation of this statute,
and if it derives a new character from
the statute must it not take all the incl
dents or consequences" 1t will be OBJ
served that the words bearer or order
and used as having the same operation,
and as contradistinguished from paper
not before negotiable and which requir-
ed the force of the statute to make it so.
1t is also said that the design of the
statute was to change the law in relation
to all commercial paper, and that it is
anti commercial in effect but this gen.
eral language must be taken subject to
the exception given in Craig Vicksburg
Supra and in the language quoted Su-
prd So if this case is decisive of the
question its tending is against the plea.
The first case in which the paper was
payable to order was Allen u. Bank 8. S.
d ~ 4S. The court held payment be-
fore maturity good. Judge Thacker in
| delivering the opinion of the court
uses very broad language, and makes the
statute apply to all commercial paper
but the subsequent case of Craig Vscks
| burg has, in part at least, overruled this
broad decision.
In Bsnsacon u. Shirley 8 S d N N457 the
paper was not negotiable by the law
merchant and hence not decisive of thi:
case.
The note in Bacon O. Coiea, II S d III
Sic, was payable to the Planters Banl
and transferred to plaintiff 0ithout in
dorsement Justice Sharkey states il
his opinion that the note was not nego
table on its face, not being payable Il
order o. bearer, but that it was made 8,
by statute, still drawing the lines of de
uarcation between that paper negotiable
by the law merchant and that made as
signable by the enabling statute.
In Craig .. Vicksburg Supra sJustic
Handy declares that the object of tn
statute clearly was to make assignabl
such initruments as were previousl
not assignable, and by the assigmen
to vest the legal title in the holder
which would not have passed with
out the assignment; and also tha
it made no difference that the paper wa
payable to person or bearer because tn
contract was between the maker an
whoever might be bearer. To my min
it is difficult to distinguish srch cas-
from one in which the instrument
payable to the payer or to such perso
as the payer might order the paymen
to be made; such subsequent holder,
seems to me, is one of the parties to th
contract. As the opinion declares tn
intent of the statute to be to make il
struments assignable which were not s
! previously, and as instruments payabl
to order were previously assignable the
should not be affected by the statut
any more than one payable to beare
. The doctrine of Craig .. Vicksburg
reafiirmed in Stokes .. Winsloss, 81 HISS
, 5lS. Mercier o. Cotton 81, Hiss, Ca WI
sfead .. Davis, 40 Miss., 7S5.
: In Lambkin o. Nye 43, M.., 251.
The court says that the true intel
: probation of the statute is that the ei
dorsement of bonds and other writing
: mentioned in the statute does no MOI
than to pass to the assignee the legs
title to the obligation or contract, wit
right to sue at law, whilst the endors.
ment of negotiable paper" such as
recognized by the law merchant as n,
: gotiable, carries along with it, in add
ton to the legal title to the paper, th
responsibilities as well as the indulgeI
cies incident to an endorsement; one
the indulgencies of which are days {
grace" Notes and bills payable to ord
are entitled to days of grace which Al
not extended to the paper made assigI
) able by the statute.
In Efhridge .. Gallagher, 55 Mss., As
it was held, Simrall, G. j. delivering Il
opinion, that note payable to bcarl
WAS not within the statute, xfirmiu
Craig q Vicksburg. Thequestion wheth,
the same rule applied to = note or .bi
1 payable to order and negotiable by Il