CARROLL versus MEEKS, 3 Port. 226

Hopkins, J. In this case an action of debt was. brought by the defendant against the plaintiff in error, upon a promissory note, which the declaration avers was made by him, for value received to one Owen or bearer. The right which Meeks showed to the suit, was as bearer of the noté. Two pleas were filed to the action, one of the statute of limitations, and the other was non est factum, to which issues were taken.

Upon the trial of the issues, in the Circuit Court of Wilcox county, the plaintiff in the action produced the note, with an indorsement upon it, made by Owen to one Armstrong; and proved the making of the note by Owen, the payee, and Armstrong the in-dorsee. To the note, as evidence, and the competency of fhe witnesses, the defendant objected, and to the opinion of the Court, which overruled the objection, he excepted.

To the first assignment of error, which denies the right of the bearer to maintain an action of debt upon the note, we deem it sufficient to say, that the note is an original promise by the maker, to pay any person who shall become the bearer of it. The right, therefore, of the bearer to the action, is the same which he would have had if the word bearer had been omitted, and the note had been made payable to Meeks, instead of Owen. Of his right in the latter case, there could be, we think, no doubt. The next assignment, questions the sufficiency of the judgment, because it isin assumpsit.

The judgment, though informal, was for the precise amount of the principal and interest due upon the note, and bound the plaintiff in error to pay no more, than an accurate judgment in debt would have done. As the judgment has the same effect that a proper one would have, we could not reverse it, upon the ground, that it is in assumpsit. The other questions to be determined, arise from the bill of exceptions. The first is, does the indorsement upon the note, show that it is the property of the indorsee, and, therefore, that Meeks has no right to the action ?

A note, payable to bearer, passes by delivery; and the holder need not make a title, through any assignment — but may claim, merely as bearer. If he ..acquire it by delivery, from the indorsee of the payee, he may sue, upon the direct promise which the note contains, to pay the bearer. The indorsement would have no more effect upon the in favor of the bearer, than the promise in the note, to the payee, has. As the latter promise does not prevent the transfer of the note, by delivery, no reason is perceived, why the assignment of the benefit of the promise, should.

In this case, the bearer, in his declaration, unnecessarily makes title to the note, by a delivery, from Owen, the payee. If Owen had brought this action, as payee, he could have maintained it, upon the presumption, that the note had been returned to him, by the indorsee. As the declaration contains an averment, that the payee assigned the note, by delivery to the which is not denied by either of the pleas, the presumption, that the indorsee had returned the note to the payee, and, that it was his property, when he delivered it to the bearer, is as reasonable as it is, in the cases, in which it has been admitted.

But, we think the Court erred, in admitting the evidence of the payee, to prove the making of the note. If the jury had found the plea of Carroll, by which he denied that he made the note, to be true, the bearer would have had a right to recover back the consideration which he paid Owen, for the delivery of the note. Owen was interested, therefore, in preventing such a verdict as would fix a liability upon him. If Armstrong the indorsee, had parted with his interest in the note, by a return of it to Owen, before the latter passed it, by delivery, to Meeks, he was a competent witness.

For the error, in admitting the evidence of Owen, let the judgments be reversed and the cause remanded. 1Porter15 1 Mason R 243 1 Stewart Rep. 154; 3Wheaton 182 2John.455