
    Noland vs. Ringgold.
    Appeal from Washing/,on County Court, This was au action of assumpsit, brought by the endorsee (now appellant,) against the maker, (now appellee,) on the following promissory note:
    “82500. Baltimore,• 10th July, 1801.
    Sixty days after date I promise to pay to Simon Wilmer, No. 28 Cheapside, Baltimore, twenty-five hundred dollars, for value received.
    
      Sami. Ringgold.”
    Thus endorsed, “S. Wilmer
    
    The declaration contained, besides a count upon the note, counts for money lent and advanced, for money had and received, and for money laid out and expended. The general issue was pleaded; and at the trial sundry bills of exceptions were taken on the part of the defendant, to the opinions of the court, and a verdict given in favour of the plaintiff. The defendant moved the court in arrest of judgment, and among other reasons assigned, one was because it did not appear that the note, set forth in the declaration, was a negotiable note, and that therefore the plaintiff vvas not entitled to support an action thereon in his own name. The county court ai rested the judgment* and the plaintiff appealed ta this court. :
    To enable the a«signee to main* tain a suit in his own name on a •promissory note, againsttlie maker, it is essential that the words “er ordcr” or "bearers* or words entura* lent, should be inserted m the note; and no notes are within the statute ibr the purpose of assignment, but such as are made payable to A B, or order, m* bearer. The words or or* <fer, or bcarerf are of no importance in a suit brought by the payee.
    The act for the amendment of the Jaw (1809, ch. 1530 does not take in this case, although : there may be other connis in the declaration, besides that upon «he note, which are good
    
      The cause was argued before Chase, Ch, J. and Polk, 'Nicholson', Earle, aud Johnson, J.
    
      TP. Dorsey and Taney, for the Appellant,
    contended, 1. Thai (he note was a negotiable note under the statute of 3 and 4 Anne, ch. 9, and that Wilmer had a right to endorse it so as to enable the holder to bring the suit thereon in his own name. They referred to that statute, and to Smith vs. Kendall, 1 Esp. Rep. 231. Burchell vs. Slocock, 2 Ld. Raym. 1545 Moore vs. Page, Ca. temp. Talb. 288. Kyd on Bills, 63, 64. Brown vs. Harraden, 4 T. R. 143; and Chitty on Bills, 165. 2. That there being several counts in the declaration, besides that on the note, all defects are cured by the act of 1809, ch. 153, for the amendment of judicial proceedings.
    
      T. Buchanan, for the Appellee,
    cited Smith vs. Kendall, 6 T. R. 123. Evans's Ess. 139, 126. Downing vs. Backenstoes, 3 Caine's Rep. 137. Lex. Mer. 41. Dawkes vs. De Lorane, 3 Wils. 211. Hill vs. Lewis, Salk. 132, 133. Gerard vs. La Coste, 1 Dall. Rep. 194. Chitty on Bills, 59, 60, 90, 91. Josselyn vs. Ames, 3 Mass. Rep. 275; and Barriere vs. Nairac, 2 Dall. Rep. 249.
   Chase, Ch. J.

delivered the opinion of the court. The court are of opinion, that to enable the assignee to maintain a suit in his own name, on a promissory note against the maker of ihe note, it is essential that the words “or order,” or “bearer,” or words equivalent, should be insert» ed in the note.

Prior to the statute of 3 & 4 Ann, ch. 9, no suit could be maintained on a promissory note, as such, by the payee against the maker. In assumpsit to recover money due on a promissory note, the plaintiff must have set forth the consideration for which it was given; and the plaintiff, although lie could give the note in evidence, could not entitle himself to a recovery without proving the consideration on which it was given. Lord Lío It resisted frequent attempts, which were made, to declare on the note as such, and to make it evidence without proving the consideration, and his persevering in that opinion is supposed to be the cause of enacting the statute of 3 & 4 Ann, ch. 9.

Tiiat statute contains two provisions — The first emptiw-’ ers the pajee to sue on the note, and makes it sufficient evidence to support his action without proving the consideration. Tlie words'of the statute are, “the money mentioned in such note shall be construed to be bij virtue thereof due and payable to the person to whom the same is made payable.” The sccorid provision empowers the assignee to sue in his own name if the note is made payable to A B, or order, or bearer. The insertion of those words makes the note transferrable, by giving authority to the payee to assign it. A note Of hand being a chose in action, is assignable only itnder the statute, and no notes are within the statute for the purpose of assignment, but such as are made payable to A B, or order, or bearer.

The words or order, or bearer, are' of no import or signification as to a suit brought by the payee, because as to him, the only thing essential was the enabling him to sue on the note, and to make It evidence without further proof.

All the cases which have been cited are suits by the payee, or the administrator or executor of the payee, against the maker, in which the courts decided the notes were within the statute — because as to him it was of no consequence whether the note was assignable or not. The case of Burchell vs. Slocock, 2 Ld. Raym. 1545, was a suit by the administrator of the payee against the maker, and the court decided the note was within the state, although not made payable to order, or bearer, and very rightly, for the reasons the court have suggested. The court know of no case in which it has been determined that an assignee can maintain a suit in his own name against the maker, on a note in which those words are not inserted.

The court are of opinion, that the act of assembly of November 1809, ch. 153, does not take in this case.

JUDGMENT affirmed»  