
    Henry Creighton Plf. in error, vs. James Gordon.
    Notes made payable to bearer are transferable by delivery. And possession is prima facie evidence of property.
    Such a transfer is a parol assignment.
    Assignment made previous to present statute would not be affected by the statute.
    The legislature might pass an act that should so far operate on a pre-existing note as to prescribe the form and manner in which the suit should be instituted.
    The Iowa stat. is an enlarging, not a restraining stat. It makes anote negotiable where it is not expressed to be so.
    This was an action of assumpsit brought by the defendant in error against the plaintiff in error, on a promissory note made by said Creighton to one John Millard, and by said Millard assigned to said Gordon. The plaintiff’s declara-ion set forth the execution and assignment of said note, and also contained a count on an account stated between the parties. Plea geni, issue, and notice that the defendant will offer testimony to prove that the said supposed note was executed, if at all, without any consideration, and was assigned, if at all, after it became due, and also that the said plaintiff had notice that said note was executed without any consideration. And that the defendant will aiso offer testimony to prove that said supposed note was executed, if at all, by means of the fraudulent representations of the original payee of said note; said payee representing to the defendant that he had good right to a certain elaim, when in fact he had no right whatever to said claim, which was in the possession of another person, and the defendant had never been able to obtain possession of it. And also that the plaintiff had notice of the facts.
    Verdict for plaintiff.
    The defendant by his counsel filed the following bill of exceptions.
    James Gordon vs. Henry Creighton.
    Be it remembered, that on the trial of the above cause, which was an action brought.on a promissory note, of which the following is a copy:
    Due John Millard or bearer one hundred dollars, the first day of June next, for value received. Signed H. Creighton.
    Louisa Co., W. T., Dec. 29,1837.
    The plea being the geni, issue pleaded before the taking effect of the law of said territory dispensing with the proof of the signature to instruments unless the same should be denied under oath by the party pleading, the defendant objected to the introduction of the same to the jury, unless the signature to the same should be proven according to the law in force under which said plea was filed: which objection was overruled by the court, and the note allowed to be read in evidence, the court deciding that the subsequent law dispensing with the proof of the signature unless denied under oath, was the law which was to govern in all actions after the taking effect of said act; to which opinion of the court the defendant excepts. The defendant also objected to the introduction of said note for a variance alleged to exist between said note offered in evidence, and the one declared on in the plaintiff’s declaration, said note being described as having been duly assigned over and delivered by the original payee to said plaintiff, when there was no assignment or endorsement on said note, which objection was overruled by the court, and the note permitted to go in evidence to the jury. To which said several opinions of the court the defendant by his counsel excepts, and prays that this his bill of exceptions maybe signed and sealed by the court, and made a part of the record in this cause.
    The following errors were assigned in the case:
    1st. The declaration sets out the said note to be assigned ana delivered, whereas there was no assignment on the note produced and read in evidence.
    2d. The suit is instituted in the name of James Gordon as assignee, whereas he does not appear to have any legal title or right to said note as aforesaid.
    3d. Said note is not assigned to said Gordon, nor was any evidence introduced to show any right he had as the assignee or holder of said note.
    4th. There is a variance between the note and the description thereof in the declaration.
    Grimes and Browning, for plff. in error,
    cited Bayley on Bills p. 2 —Laws 
      
      of Michigan 344. — 2 Star. 151, endorsements unnecessarily averred must be proved.
    The assignment should have been made in accordance with the new statute. Bayley on Bills, 26 — Swifts JDig. 429 — lb. 434.
    The new statute would govern this case so far only as to determine in what manner the suit shall be instituted, — whether in the name of the holder or not.
    Grimes contended that the rule of law is that all unnecessary allegations of endorsements must be proved. 1 Camp. 175 — Rex vs. Stevens 5 East. 244— Williamson vs. Jillison 2 East. 446 — Peppin vs. Solomon 5 7. R. 496 — 2 Star. Ev. 151.
    The note introduced contained no endorsement, although the declaration contained the allegation of one. This was a fatal variance.
    A great error prevails by confounding (lie lex mercatoria with the 3 and 4 Anne, and the territorial law of Jan 4th 1839.
    By the law merchant bills payable to bearer passed without endorsement. By the statute of Anne, promissory notes were put on the footing of bills of exchange, and passed as they did, some requiring endorsement, and others not. The statute of 4th Jan., 1839 says expressly ihat notes &c. shall be assignable by endorsement thereon under the hand of such person and of his assignee Sic., implying that they shall be transferred in that manner only.
    The territorial statute repeals the act of March 12, 1827, Michigan laws p. 344, and now all notes payable to bearer must be endorsed “ under the hand of the original payee” to entitle the bearer to maintain suit thereon Does then this statute govern this case ? Certainly it does. The suit was commenced after the act of 4th Jan. went into operation. At the time it was instituted Gordon had no cause of action unless his note was duly endorsed. The legislature gave him from 4th Jan. to 1st March 1839 to commence his suit by common law. If not done in that time that right was waived and lost, and he must comply with the statute. There is no question but that the legislature can alter of amend a statute of limitations, lengthening or shortening the time in which a suit can be commenced at will. The legislature can restrict the right to commence suits to a particular county, though that right was general before, as in the case of Elliot vs. Cronks’ Jidmrs. 13 Wend. R. 35. The statute of Jan. 4th in its relation to this case is purely remedial.
    The remedies afforded by law for the enforcement of rights are entirely the creatures of legislative power, and subject at all times to alteration, at the pleasure of the legislature, and such statutes may be retrospective in their operation. 1 Tuck. Corn. 3 — Gaskins vs. the Com. 1 Call 194 — Day vs. Pickett.% 4 Munf. 104. Plff. cited also 1 Peters' R. 604 — lb. 2, 380, Saiterlee vs. Mat-thewson.
    
    Rorer and Henry W. Starr, for defendant,
    contended that if Gordon had a right to sue at the time of the transfer in 1837, it could not be taken away by subsequent statute. The transfer was previous to the law. But the law of Iowa does not repeal the law of Michigan. If they are not inconsistent, and can stand together, one does not repeal the other. The fact of being the holder and producing the note in court is evidence of Gordon’s title.
    By the common law of this country notes payable to bearer are assignable by delivery. And it is not necessary that an assignment should be in writing.
   By the Court.

Mason, Ch. Jus.

This action was brought upon the following instrument. “Due John Millard or bearer one hundred dollars, the first day of June next, for value received Louisa County, W. T. Dec. 29, 1837,” and signed by the plaintiff in error. It was never endorsed, but came by delivery into the possession of Gordon, who brought suit on the same in the District Court, and obtained a judgment, which there is now an effort to reverse.

The declaration sets out that the note was “ duly assigned over and delivered” to the plaintiff below, and the counsel for the plaintiff in error insist that a written assignment or endorsement was thereby meant, and that consequently there is a variance between the note and the description in the declaration. "VVe think this position is untenable. Notes made payable to bearer are transferable by mere delivery, and vest in the holder the right to bring suit in his own name. Such a transfer is a parol assignment. The holder divests himself of the property in the note, and transfers it all to the assignee. Possession is prima facie evidence of property. Gordon therefore, being the holder of the note, it was to be presumed he was the owner thereof, and that it had been duly transferred to him. Had the declaration set forth the note as having been endorsed, an endorsement in writing must have been shown: but although endorsement is a speeies of assignment, the latter is much more comprehensive than the former, and in instruments of this kind may be duly made by parol.

But it is contended that as this action was commenced since the new statute took effect, it must be controlled by that statute. In some respects this would certainly be the case, but the assignment or transfer mrüst be presumed to have taken place before this act went into operation, and if made in accordance with the law as it then existed, might certainly have been properly described as having been “duly assigned over and delivered.'''’

Agreeably to the decision of Harlan & Duncan vs. Sigler made at this term of the court, the legislature were competent to have passed an act that should so far operate upon a pro-existing note as to prescribe the form and manner in which the suit thereon should be instituted, and to render it necessary for Gordon to have sued in the name of Millard. But did they exercise their power in this particular.

It may very plausibly be questioned whether the act of the Iowa legislature in relation to promissory notes is intended to apply at all to negotiable paper, inasmuch as no mention is therein made of notes made payable to “order” or to “bearer.” It speaks of notes “payable to any person,” &c., and declares them assignable by endorsement, and it may with much propriety be argued that this.branch of the statute in particular was only intended to extend the law in relation to negotiable paper so that it should embrace other, instruments not before negotiable. If this position be correct, the objection we have been considering vanishes at once ; for in that case the former law on the subject remains unrepealed.

But whether the act of Michigan on this subject be still in force or not, can, we think, make no difference in the decision of this case. We hold that, in the absence of all legislation, notes of this kind would be transferable by delivery, giving the holder the right to sue in his own name, inasmuch as he is possessed of the legal interest. This right is in strict accordance with the precise terms of the instrument itself, and no principle of law recognized at the present day prevents carrying this agreement strictly into effect. Formerly there was a great aversion to the assignability of a chose in action. But experience has so conclusively demonstrated the utility of deviating from the strict rules established on this subject, that even where the legislature has not interfered, the decisions of a former period have to a very considerable extent been overturned or evaded. At the present day no statute would be necessary to render a note negotiable which the maker himself had expressly declared should he payable to “order” or to “bearer.” To change this state of things an express legal enactment is necessaay. The Iowa statute makes no such provision. It is an enlarging, not a restraining statute. It renders a note negotiable where no such agreement was made by the parlies thereto, and even where there might have been an expressly contrary intention and understanding, but it does not limit the rights which assignees possessed independent of that statute.

The judgment below will therefore be affirmed.  