ERRATA. Page 22, line 10 from top, for "for" read "from." 66 4 8 66 89, 66 7 "202, 66 66 9 66 II 17 66 "401, 593, 66 bottom, for "or" read "on." top, for "her" read “his.” top, strike out "of the condition." top, for "seven" read "five." top, strike out "not." top, strike out the apostrophe after "so." 3 top, insert after "all" "his claims to." 10 and 9 from bottom, for "includes" read "excludes." 7 from bottom, for "forty-two" read "thirty-four." 12 "800, 66 8 "804, 66 8 bottom, for "she" read "he." 7 and 18 from bottom, for "plaintiffs" read "defendants." CASES DECIDED IN THE SUPREME COURT OF APPEALS OF VIRGINIA. Richmond. HOWE, KNOX & Co. v. OULD & CARRINGTON. BARTLETT & ROBINS v. OULD & CARRINGTON. November 23. 1876. 1. Delivery is absolutely essential to the transfer by endorsement of negotiable paper, but such delivery may be either actual or constructive. November 2. Whether a purchaser or endorsee of negotiable paper has acquired such possession actual or constructive as is sufficient for all the purposes of the transfer, must always depend upon the particular circumstances of each case. 3. S is the owner of the negotiable note of M. for $8,000, which he endorses and deposits with the bank as collateral security for a loan of $4,000 obtained upon the discount by the bank of the note of B. S sells the note to O, and gives O an order on the bank to deliver the note to O. On the same day O presents the order at the bank, and is told the president of the bank is absent from town. Some days VOL. XXVIII-1 Term. 1876. November Term. Howe, Knox & Co V. Ould & Carrington Bartlett & Robins V. Same. thereafter O has an interview with the president at the bank, and is then informed that the debt of S is nearly paid, and that he would deliver to O the note but for the service of attachment upon the bank. The debt of S is afterwards paid in full. Before the sale by S to O, an attachment had been served upon M at the suit of a creditor of S; but of this O had no notice when he purchased the note. After the sale and notice to the bank by O, an attachment was served on the bank by another creditor of S. HELD: The sale by S to O is valid, and he is entitled to the note as against the attaching creditors of S. These two cases are substantially the same, and were heard together in this court. The subject of controversy in the cases is the note for $8,000 given by Solomon Myers to Samuel Strong, which was one of the subjects involved in the case of Myers v. Ould & Carrington, reported in 23 Gratt. 383. In that case it was held that the note was a valid security as against Myers; but whether it was the property of Ould & Carrington under the transfer of it by Strong to them, or was subject under the attachments of his creditors. was left to be litigated in the attachment suits of these creditors. On the 29th of May 1866, Howe, Knox & Co., instituted their action of assumpsit against Samuel Strong, in the circuit court of the city of Richmond, to recover the sum of $1,092.43, with interest from the 1st of October 1865; and at the same time they sued out attachments against him as an absent defendant; one of which was served on Solomon Myers on the 31st of May 1866, and the other was served on Betz, Youngaling & Co. on the 29th of May. Ould & Carrington filed their petition in this suit, claiming that the note for $8,000 executed by Myers to Strong had been transferred to them by Strong, and that they were the holders thereof for value without notice of the attachment of Howe, Knox & Co. On the trial of the cause, in December 1866, be November Howe, V. Ould & tween the plaintiffs and Strong, there was a verdict 1876. and judgment in favor of the plaintiffs. The case, Term. upon the petition of Ould & Carrington, was then allowed to lie until their contest with Myers was ended. Knox &Co The case came on for trial in January 1874, when the parties dispensing with a jury submitted the whole Carrington matter of law and fact to the court. And the court Bartlett & held that the right of Ould & Carrington to the said Robins note was paramount to that asserted by the plaintiffs under their attachment. And the First National Bank which had possession of the note, admitting they had no claim upon it, was directed to deliver it to Ould & Carrington. To this opinion of the court the plaintiffs excepted; and set out the evidence in their exception. They applied to this court for a supersedeas; which was allowed. The case of Bartlett & Robins against Strong, was also an action of assumpsit, in the same court, brought on the 30th of May 1866, to recover the sum of $3,200. They also sued out attachments, one of which was served on Solomon Myers, on the 31st of May. They sued out another attachment on the 13th of June, which on the same day was served on H. G. Fant, president of the First National Bank of Richmond. Ould & Carrington filed their petition in this suit, claiming the said note of Myers as theirs, on the same grounds stated in the former case. The same proceedings were had in the case, viz: a judgment in favor of the plaintiffs against Strong, and in favor of Ould & Carrington against the plaintiffs, and an exception by them, and a supersedeas allowed. The evidence in both cases is the same, and omitting what has been before stated is as follows: Solomon Myers had executed his negotiable note to V. Same. |