November

Samuel Strong, or order, in the words and figures, fol

Term. lowing, to-wit:

Howe, Knox & Co

V.

Ould & Carrington

$8,000.

Richmond, Virginia, 14th April, 1866.

On the first day of August, eighteen hundred and Bartlett & seventy-six, I promise to pay to Samuel Strong, or Robins order, without offset, negotiable and payable at the National Exchange bank of Richmond, Virginia, eight thousand dollars, for value received.

V.

Same.

SOL. A. MYERS.

Endorsed,

SAMUEL STRONG.

Which said note the said Strong had endorsed in blank, and delivered to the First National Bank of Richmond, of which H. G. Fant was president, as collateral security for a loan of four thousand dollars, made by the said bank by discounting for said Strong a note of Betz, Youngaling & Byer, at the time the said note was so pledged, and before the service of plaintiffs' attachment upon said Myers, and that said note is still due and unpaid, and amply secured by deed of trust on real estate in the city of Richmond.

That on the 8th day of June 1866, Ould & Carrington became purchasers for value of said note, without notice of any attachment issued or served upon said Myers or the said bank; that said note was transferred to them in payment or discharge of a debt of two thousand five hundred and fifty dollars due them from Strong; and that after the said transfer they had no claim against said Strong, either by reason of the said Strong's endorsement in blank of said note or on any

1876. November

Term.

Howe,

V.

account whatever; that at the time of the transfer to them of said note it was held by the bank in pledge for the sum of four thousand dollars lent to said Strong as herein before stated, but that the said debt has since Knox & Co been paid off and discharged; that the plaintiffs in Ould & this suit had never caused to be issued or served any Carrington attachment whatsoever upon the First National Bank. Bartlett & That Ould & Carrington, on the 8th day of June 1866, presented or delivered to an officer of the bank, Same. the order of Samuel Strong in their favor for said note, which said order is in the words and figures following, to wit:

ORDER.

Mr. Fant will please deliver to Mr. Ould the note of Mr. Sol. Myers, which I left with him as collateral security for notes of Betz, Youngaling & Byer.

SAMUEL STRONG.

Robins

V.

June 8th, '66.

That Mr. Ould was then informed by an officer of the bank, that the president, Mr. Fant, was out of town. Some days thereafter, Mr. Ould had an interview with Mr. Fant at the bank, and was then informed that the debt was nearly paid for which the note was pledged, and that he would deliver to him the note, but for the record service of attachment upon the bank. No claim upon said note is now asserted by the bank or Betz, Youngaling & Co.

The Attorney General and Cannon & Courtney, for the appellants.

Ould & Carrington and Page & Maury, for the appellees.

1876.

November

Howe,

V.

Ould &

Robins

V.

Same.

STAPLES, J. This is a controversy between Howe,

Term. Knox & Co., as attaching creditors of Samuel Strong on the one hand, and Ould & Carrington on the other, Knox &Co claiming to be purchasers and endorsers for value of a negotiable note executed by Myers to Strong. The Carrington plaintiffs' attachment was served on Myers on the 31st Bartlett & of May 1866. On the 8th of June 1866, Ould & Carrington purchased the note from Strong. They, however, did not then acquire possession of the note, as at that time, and at the time of the service of the attachment, it was held by the First National Bank as collateral security for a debt of about four thousand dollars, which Strong had owed the bank. Strong, however, gave Ould & Carrington an order on the bank for the note, which was on the same day presented or delivered to an officer of the bank. Mr. Ould, by whom the note was so presented, was then informed that the president was out of town. Some days thereafter, in an interview between that officer and Mr. Ould, the former told the latter, that the debt for which the note was pledged was nearly paid off, and that he would deliver up the note, but for the service of an attachment on the bank. It seems that this latter statement was founded on a misapprehension, and that in fact in this case no attachment was ever served on the bank. The balance of the debt for which the note was pledged has been long since paid, and the bank asserts no claim to the note.

It is conceded that Ould & Carrington are bona fide purchasers of the note for value; that they made the purchase without notice of the attachment issued or served upon Myers, or the bank; and it is fair to presume they did not acquire such notice until the interview with the president of the bank; which was several days after the first presentation of the order

Howe,

V.

Ould &

Robins

V.

Same.

to an officer of that institution. It must be admitted 1876. November that this is a strong equity in favor of Ould & Carring- Term. ton. It is insisted, however, that this is not sufficient. In order to defeat the lien of the attachment, they Knox & Co must have something more: they must, it is said, have the legal title as endorsees for value. This Carrington ground, it is contended, they do not occupy; because Bartlett & at the time of the purchase, no delivery was made to them. They did not and could not even obtain control of the note, as it was then in possession of the bank as collateral security for a debt. Now it may be conceded as well settled under the law merchant, that delivery is absolutely essential to the transfer by endorsement of negotiable paper. The authorities leave no room for doubt or controversy on this point. The cases are, however, not agreed in respect to the acts necessary to constitute a delivery. Notwithstanding an occasional obiter opinion to the contrary, it is very clear that an actual manual delivery is not absolutely essential to a title by endorsement. "Holder is a general word applied to any one in actual or constructive possession of the bill, and entitled at law to recover or receive its contents. This is the rule as laid down in Byles on Bills. In a note to the same authority it is said, "It is conceived that if an agent, a banker for example, hold a bill transferable by delivery, a direction given to him by the owner to hold it for another, it is a sufficient transfer by delivery." Sixth edition, page 235.

Here the note was endorsed in blank by Strong, and was transferable by delivery. A written direction was given by Strong to the bank to deliver it to Ould & Carrington; and notwithstanding a small balance of the debt for which the note was pledged, was still due, the bank was perfectly willing to surrender the note

1876. to Ould & Carrington, and would have done so but for

November

Term. the supposed existence of the attachments.

Howe,

Ould &

We have the right to infer at least that such was the Knox &Co fact. The president of the bank so stated, and the V. correctness of that statement was never denied or Carrington questioned by the bank or its officers or attorneys. Bartlett & The amount due the bank was at the time insignifiRobins cant, and that was amply secured. There is no question therefore, no just reason to doubt, that the bank was wiling to surrender the note to Ould & Carrington, as stated by the president.

V.

Same.

In Edwards on Bailments, page 225, the author lays it down "that the pawner retains the right to negotiate or collect the note provided he discharge the lien of the pledge before judgment; he may transfer the note to a third person, who may maintain an action on it as evidence in his own name

This language is directly applicable to the present case, and the doctrine is fully sustained by the authorities.

The case of Fisher v. Bradford, 7 Greenl. R. 28, in many of its features bears a strong resemblance to the case in hand. There the note had been pledged as collateral security to a bank, and it was insisted, whilst so held, it could not be negotiated to a third person, so as to give him a right of action in his own name. In answer to this objection, Weston, Judge, said: "The bank had a special property, which, accompanied as it was by possession of the instrument, would have justified and enabled it to sue and recover thereon. But the general owner may sue, although liable to be defeated in his action if the bank, not being otherwise satisfied, thought proper to retain the note to its own use. And so may any other person, authorized to sue by the general owner, be subject to the same contingency.