
    *Alfred Avery, for the use of Charles Sawyer, v. Latimer and Fell.
    A promissory note, payable to a person or bearer, is negotiable by delivery.
    A sealed bill or note,, in the same form, is only negotiable by indorsement.
    This case was submitted to the court in Licking county, and reserved for decision here.
    The declaration is upon a sealed bill, executed by defendants to Alfred Avery, for $300, payable, with interest, to the said Avery or bearer, on or before the 1st day of June next after the date thereof, and dated on April 6, 1842.
    The defendants pleaded the general issue, and a special plea in bar. This second plea alleges that before the commencement o'f the suit, A. Avery, for a valuable consideration, sold, negotiated, and delivered said single bill to one Charles Sawyer, who, in pursuance thereof, has ever since held the same in his own right, etc.
    To this plea the plaintiff demurs generally.
    J. B. & W. Stanbery, and C. C. Converse, for plaintiff:
    The demurrer is designed to present the question whether, under our statute, making certain instruments negotiable, a suit can be maintained by the holder of a note payable to bearer, in the name-of the holder, without an indorsement by the payee on the note, or, in other words, whether the legal title to such paper vests in the holder by mere delivery, without indorsement. Swan’s Stat. 587 ; 1 Chit. PI. 213, citing 1 Saund. 276 a, n. 2; Bullet v. Scribner, 1 Blackf. 14; McNitt v. Hatch, 4 Blackf. 531; Carew v. Northup, 5 Ala. 367; 4 Bacon’s Ab., title Merchandise, 689-696.
    *L. Case, for defendants:
    The defendants submit that it is a fundamental maxim of the law that the plaintiff must have the legal title to the subject matter of suit. 1 Chit. PI. 2-4; 1 Wend. 27; 9 Conn. 94.
    Here the legal title to the paper sued upon has been legally transferred from the plaintiff. Such instruments were transferable by delivery, at the time of the passage of our law, which is simply declaratory of what the law was at the time of its enactment. 2 Burr. 15, 24; 1 Salk. 126; Crawley v. Crowther, 2 Trem. 257; Show. 255 ; Grant v. Vaughn, 3 Burr. 1576; Bank of Kentucky v. Winter, 2 Pet. 326; Ballard v. Bell, 1 Mason’s C. C. 243; Bradford v. Jenkins, 2 McLean, 132; Byington v. Giddings, 2 Ohio, 228; Rhodes v. Lindsley, 3 Ohio, 51; 7 Ohio, 237; 1 Black. Com. 75; 2 Burr. 1226; 3 Kent’s Com. 73; Davis v. Herrick, 6 Ohio, 66; 4 Kent’s Com. 445; Esp. 88; 1 Wash. 170; 1 Munf. 487; 1 Show. 161 ; 1 Cranch, 389; Bank of St. Clairsvilie v. Smith et al., 5 Ohio, 222.
   Hitchcock, J.

The defense relied upon by the plea demurred to, is, that the plaintiff has no legal title to the bill declared upon ; and, by the argument, it seems to have been the intention to have presented the question to the court, whether a promissory note, payable to bearer, is negotiable by delivery, so as to transfer the legal interest therein to the bearer. ■

- Our statute “ making certain instruments of writing negotiable ” (Swan’s Stat. 587) provides, “that all bonds, promissory notes, bills of exchange, foreign aDd inland, drawn by any sum or sums of money certain, and made payable to any person or order, or to any person or bearer, or to any person or assigns, shall be negotiable by indorsement thereon, so as absolutely to*transfer and vest the property thereof, in each and every indorser successively.” A law similar to this has been in force in the state from a very early period. If this wore a recent act, and we were called upon to give^a construction to it, we should unquestionably say that a promissory note, payable to any person or bearer, could not be negotiated except by indorsement thereon. But a contrary practice has prevailed from the time, as well as before the time, of the enactment of the statute. And this ¡practice was introduced upon the supposition that, by the law merchant, which is a part of the common law, such notes were negotiable by delivery. No inconvenience results from this usage, and it would hardly be consistent or proper for us to change it, because it does not exactly accord with our ideas of a proper construction of the statute.

But the difficulty in this case is, that the instrument declared on, is not a promissory note. Tt is an obligation under seal, and said paper does not come within the description of commercial paper. Such paper was not negotiable by the English statute, either by indorsement or otherwise. It is, however, within the provision of our statute, which makes it negotiable paper. But it must be negotiable as the statute directs, and that is by “indorsement thereon.” It is said, however, that it is alleged in the plea that it was negotiated for a valuable consideration. But how negotiated we are not informed, and herein the plea is defective. It does not show that the instrument has been negotiated in such manner as to vest the property in the holder, which could be done only by indorsement thereon.

The demurrer is sustained.  