Thomas Fitzwilliams v. Jacob Wilcox and others, 2 Rob. 303

MartiN, J. The defendants, endorsers of a note, are appellants from a judgment against them. They resisted the plaintiff’s claim on an averment that he is without interest in the note, otherwise than so far as may be necessary to avail himself of a mortgage given to secure the payment of the note to the Exchange and Banking Company, which was transferred by the Bank to the plaintiff bj a notarial act. The plaintiff is in possession of the note, with the-blank indorse-ments of the defendants.

They do not allege that he is so without consideration, and indeed the consideration is proved; but they urge that the notarial act executed by the Bank in his favor, speaks only of the transfer of the mortgage without saying a word as to that of the note. The District Judge was of opinion, that possession of a promissory note payable to order, and indorsed in blank, is prima facie evidence of title. The property of such a note passes by delivery.

The plaintiff needed no other transfer of the note, and his possession would have entitled him to avail himself of the mortgage ; but this he could, not have done, via executive, without an authentic transfer of the mortgage. He, therefore, did not content himself with merely receiving the note, but required a notarial transfer of the mortgage, in order that he might not be compelled to resort to the via ordinaria for the purpose of having the land sold. Judgment affirmed.