
    Howe, Knox & Co. v. Ould & Carrington. Bartlett & Robins v. Ould & Carrington.
    November term, 1876,
    Richmond.
    a. \esotialile Paper — Delivery.—Delivery is absolutely essential to the transfer by endorsement of negotiable paper, but such delivery may be either actual or constructive.
    2. gjune — Same—Intent.—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.
    .‘i. Same — Constructive Delivery — S11 !-so-<a.nent Attachment. — S is the owner of the negotiable note of hi for 88,000, 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 tin; 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 hank, and is told the president of the bank is absent from town. Some days "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; hut of this O had no notice when he purchased the note. After the sale and notice to the bank by O, an attachment was solved on the bank by another creditor of S. Hiinn: 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 33 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 39th 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 $1,093.43, 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 1868, and the other was served on Betz, Youngaling & Co. on the 39th 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, between *the plaintiffs and Strong, there was a verdict and judgment in favor of the plaintiffs. The case, upon the petition of Ould & Carrington, was then allowed to lie until their contest with Myers was ended. The case came on for trial in January 1874, when the parties dispensing with a jury submitted the whole matter of law and fact to the court. And the court held that the right of Ould & Carrington to the said 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 & Robbins against Strong, was also an action of assumpsit, in the same court, brought on the 30th of May 1866, to recover the sum of $3,300. 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 *Samuel Strong, or order, in the words and figures, following, to-wit:
    
      Richmond, Virginia, 14th April, 1866. $8,000.
    On the first day of August, eighteen hundred and seventy-six, I promise to pay to Samuel Strong, or order, without offset, negotiable and payable at the National Exchange bank of Richmond, Virginia, eight thousand dollars, for value received.
    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 ^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 hereinbefore stated, but that the said debt has since been paid off and discharged; that the plaintiffs in this suit had never caused to be issued or served any attachment whatsoever upon the First' National Bank.
    That Ould & Carrington, on the 8th day of June 1866, presented or delivered to an officer of the bank, 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. Meyers, whi.ch I left with him as collateral security for notes of Betz, Youngaling & Byer.
    Samuel Strong.
    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 Attornev General and Cannon & Courtney, for the appellants.
    
      Ould & Carrington and Page & Maury, for the appellees.
    
      
       I»Io Paper — Delivery.—On the question of the delivery of bills of exchange and promissory notes, see generally, 4 Am. & Eng. Ene. I.aw (2nd Ed.) 20], 251, 263. See also Grasswitt v. Connally, 27 Gratt. 19; Wright v. Smith, 81 Va. 777.
    
   *Staples, J.

This is a controversy be-_ tween Howe, Knox & Co., as attaching _ creditors of Samuel Strong on the one hand, and Ould & Carrington on the other, claiming to be purchasers and endorsers for value 'of a negotiable note executed by Myers to Strong. The plaintiffs’ attachment was served on Myers on the 31st 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 Jhe 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 *to an officer of that institution. It must be admitted that this is a strong equity in favor of Ould & Carrington. It is insisted, however, that this is not sufficient. In order to defeat the lien of the attachment, they must ha-ye something more: they must, it is said, have the legal title as endorsees for value. This ground, it is contended, they do not occupy; because 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 deliverey.” Sixth edition, page 235.

Here Ihe 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 *to Ould & Carrington, and would have done so but for the supposed existence of the attachments.

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

In Edwards on Bailments, page 225, the author lays it down “that the pawner retains the right to negotiate or collect the note provided lie 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 j 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 i being otherwise satisfied, thought proper to j 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 l contingency. *The arrangements be- | tween the bank and the payee afford \ ao defence to the maker. The pledge hav- ! ing been given up, it is as to him as if it had never existed. lie is not liable to the bank; and when he has paid and satisfied the plaintiff, he is completely discharged from the note; and no one who is or ever was interested in it can have any cause of complaint.”

The case of Richardson v. Lincoln, 5 Metc. R. 201, sustains the same doctrine of a constructive delivery. There Chiee Justice Shaw, who it will be agreed is good authority, said: “In this cáse the note was in the keeping of Mr. Williams, as the attorney of the promisee, and he was then his agent. But when Richardson, the promisee, • negotiated the note to his daughter, and left it in Mr. Williams’ custody for her use, he thereby consented to hold it for her, and became her agent, and brought an action on it in her name, which she sanctioned by original order or subsequent ratification. This is abundant proof of actual transfer and constructive delivery, and makes her holder and endorsee of the note, although she never saw it.” An in another place the learned chief justice says: “A constructive delivery is sufficient; and even in case of the sale of goods deposited in the hands of a third person, a contract of sale, with an order on the depositary to deliver them to the vendee, is a good constructive delivery.

In Mitchell v. Byrne, 6 Rich. R. 171, the controversy was between attaching creditors on the one hand, and certain plaintiffs claiming to be holders of the bill for value on the other. The important question was to determine when the plaintiffs became such holders. The bills had been mailed to the plaintiffs, but had not reached them on the day of levying the attachment, the 5th December 1850. The supreme court of South *Carolina held, that so soon as the bills were mailed to the plaintiffs they became the owners thereof, with immediate right of action thereon, and that it was not necessary that the plaintiff, at the time of commencing his action, should have the possession of the bill. It is sufficient that he is the owner.

If in that case the court, at the instance of the attaching creditors, had interfered and prevented the plaintiffs getting possession, it can hardly be supposed that this act would defeat a title previously acquired. If by the mailing the plaintiffs become the owners, then no act of a third person could defeat the rights thus acquired. The case of the King v. Lambton et als., 5 Price 428, 444, 2 Eng. Exch. R. 276, affirms the same doctrine as the South Carolina decision.

The case of Lysaght v. Bryant, 67 Eng. C. L. R. 46. is, perhaps, a stronger authority upon the same subject. There Eysaght & Smithell carried on business in partnership. Being indebted to Lysaght, the elder, one of the firm, who acted as agent of the creditor, with the concurrence of his partner, endorsed a bill of exchange in the name of the firm, and placed it amongst the securities which he held for the creditor; but the fact was never communicated to the creditor. He was not informed either of the indorsement or of the deposit of the bill among securities held for his benefit; and yet it was decided that this was a good endorsement by the firm to the creditor. This decision was made by the unanimous opinion of the judges of the common pleas.

Numerous decisions in reference to deeds show the reluctance of the courts to permit mere technicalities with respect to delivery to defeat the intent of the parties, and the manifest justice of the case. Thus in Hedge v. Drew, 12 Pick. R. 141, it was held that a delivery *of the deed by a father to a third person for the use of a daughter, and her subsequent assent to it, was a good delivery to pass real estate.

In Dargan v. Richardson, 1 Cheves’ Law R. 197, the plaintiff, as security for one Long, had paid money on his account. Long being about to leave the state, addressed a letter to the plaintiff making an assignment to him of all his goods as an indemnity. After the date of the letter, but before it reached the plaintiff, attachments were levied upon the goods. It was held that the assignment was good against the attaching creditors.

And in Hutchinson & wife v. Rust, 2 Gratt. R. 394, the deed was acknowledged before a justice, but retained in the possession of the grantor. And yet this court held it a good delivery, it being manifest that the grantor intended to hold it for the benefit of the grantee. . According to all the authorities the delivery of a deed is complete when the grantor has parted with his dominion over it, with intent it shall pass to the grantee, if the latter assents to it by himself or his agent. I do not say there is a perfect analogy between deeds and negotiable instruments. But as between the endorsee for value, or one claiming to be such, and a third person, asserting a mere statutory lien, substantially the same rules should apply to both classes of instruments.

The transfer of negotiable paper is not by force of any statute, but is regulated purely by usage, and that usage is founded on convenience. The reasons, or one of the reasons for requiring the delivery of such securities in order to confer a perfect title, is that it would be very inconvenient to separate the evidence of ownership from the bill or note itself. The maker, upon paying the same, has the rights to demand the surrender *of the bill or note, for his own protection. Otherwise he could never pay with entire safety. Besides he would never know whom to pay where the possession is separate from the title. It will thus be seen that one ground of the rule is the security of the maker. Another is the unrestricted circulation of such paper, so that the bona fide holder for value may be secure h; his title and his possession. These rules of the law merchant requiring delivery .are of course moulded to suit the convenience and necessities of mankind. When the reason for requiring actual delivery ceases, the rule no longer applies. If, for example, the note is in possession of one as an agent or attorney, who acknowledges the title of another, the owner may negotiate it as effectually as though he had the actual possession, and the transferee will acquire a perfect title although he may never see the note. No one will contend that in such case a loss of the note by robbery, or by fire, or even by the adverse claim of another, would defeat the title of the transferee. It is his note that is stolen, or destroyed, and not that of the seller. Whether, therefore, the purchaser or endorsee 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.

If, in the case before us, Strong had gone with Ould & Carrington to the bank and requested the latter to hold the note for the benefit of the former, the note would have been fully negotiated. There is no doubt but the owner may pledge the bill or note, and then negotiate it, subject only to the lien of the pledge. The transferee must of course have the possession or control of the paper when payment is demanded or a recovery is had. As already stated the bank asserted *no claim to the note at the time; it recognized the transfer and the title of the purchaser. So that the case presented is one in which the pledgee so far from asserting a lien waives it in favor of the endorsee. How then does the mere existence of an attachment prevent the operation of these principles of law. It certainly cannot effect the result as between Ould & Carrington and the maker. The latter cannot complain. By the terms of his contract he is answerable to the payee or to his order, and according to its legal effect to the order of any other holder. His obligation is to pay the holder, whoever he may be, at the maturity of the note in 1876. Besides, the maker has had his day in court, and is no longer concerned in the decision. The transfer of title is complete as to him, as to Strong, and as to the bank, and was so complete on the 8th of June 1866, the day of the transfer. If the transaction between these parties on that day was complete, leaving nothing to be done as between them to vest the title, the existence of the attachment could not affect the title unless Ould & Carrington at that time had notice of it. They would have obtained actual possession of the note long ago but for the interference of the court at the instance of the attaching creditor. In determining the rights of the parties, however, one must look not to what has since occurred, but to the facts as they existed on the day the transfer was made, and the bank notified. The attaching creditors cannot by invoking the aid of the court to wrest the note from the bank, and thus prevent its recovery by the endorsee, change the rights and obligations of the parties as they previously existed. My opinion therefore, is, that Ould & Carrington were, on the 8th of June 1866, endorsees for value without notice of the attachment. However *much we may differ upon this point, we are all agreed that if they occupy that position they are entitled to the note as against the lien of the attachment. By the law of the instrument, by the terms of the contract, the person in possession of the note at the time of its maturity, is entitled to the payment. This is the obligation of the maker. This he is bound to do, and he is not required to do more. The suing out and service of an attachment cannot change these results.

Another interesting and important question was discussed at the bar with much learning and ability; and that is, whether a negotiable note, whilst it is still current, is properly the subject of levy by attachment at all. It is unnecessary to express any opinion upon this question. If we should hold that it is not, such a decision would of course be fatal to the pretension of the attaching creditors. If we should hold, on the other hand, that such a note may be the subject of attachment and process of garnishment, the result would be the same, inasmuch as Ould & Carrington being endorsees for value had title paramount to that acquired by the levy.

Bartlett & Robbins, )

v. {Staples, J.

Strong et als._ )

This case is substantially the same as the preceding one. Here the attachment was issued on the 30th May J866, and served on Myers on the 31st of that month, but it was never served on the bank. The second attachment was issued on the 13th of June 1866, and served on the bank on the same day, But never served on Myers. If the plaintiffs rely upon the first attachment, they occupy the precise position of the creditors in the preceding case. If they rely on *the second, both attachment and levy are subsequent to the transfer to Ould & Carrington, and of course confer no lien or title. If we consider both attachments together, and give the plaintiffs the benefit of the levy on the bank, if was after the purchase by Ould & Carrington, and of course could not affect any rights previously acquired. Whether service on the bank before the transfer would have had such effect, it is unnecessary now to inquire. I think this case must take the same course as the other.

Judgments affirmed.  