Davis, Adr., vs. Lane, 8 N.H. 224

Upham, J. The plaintiff’s right to sustain this suit depends on the question, whether the note due his intestate was passed from him by any valid authority ? If not so passed, the plaintiff, as his representative, has a right to the note wherever it may be found ; or, if it has gone into the promissor’s hands, he may bring his action for the original consideration.

The defendant attempts to controvert this position, on the ground that when the note was taken up by him he had no notice that it went into the hands of Prescott without due authority; that a negotiable note may be assigned by delivery, and he might therefore well presume that Prescott held it bona fide. There is no doubt but a bill or note, payable to order, may be transferred by the payee by delivery only, so far as to enable the assignee to maintain an action upon it in the name of the original payee. Bayley on Bills 65; 2 N. H. R. 446, Foster vs. Shattuck; 12 Mass. 281, Mowry vs. Todd; 13 Mass. 304, Jones vs.

Witter. In 13 Mass. 305, Chief Justice Parker remarks, that there is no sensible ground upon which a writing shall be held necessary to prove an assignment of a contract, which assignment has been executed by delivery, any more than an assignment of a personal chattel. These authorities sustain the position that a negotiable note may be assigned by delivery. It is holden, however, that in case of the loss of a note, if the bill or note be assignable by mere delivery, as if payable to bearer, the finder may confer a title by delivery; but if made assignable by endorsement, he cannot. Bayley on Bills 72; 1 Hen.

Bl. 607; 4 D. & E. 28, Mead vs. Young; Chit. on Bills 92. The result of the authorities is, that a negotiable note is assignable by delivery merely ; but this assignment can be made only by the person having the legal interest in the note. A delivery by an unauthorized person is no assignment. The fact that the promissor had no knowledge but Prescott was a rightful holder of the note, does not make the assignment valid. The transfer not having been made in the usual manner, by endorsement, should have placed the defendant on his guard.

As Prescott claimed the interest in the note without color of right, and the defendant paid the amount to him, he has his remedy on Prescott; but as regards the plaintiff, it is no payment. Neither the plaintiff, or his intestate in this case have done any thing to preclude their right to this note, or to throw any blame upon them. An attempt was made to withdraw the note wrongfully from the estate. The defendant may not have been cognizant of this fact: but the note must be maintained against him till payment is made to its rightful holder. The nonsuit, therefore, must be set aside, and a New trial granted.