Blackman and another v. Beha.

with the contractors. And it seems sufficient to say that do not think it amounts to such written assent.

we

The defendants made a question, whether the lien should not have covered all the buildings erected under the written contract, set out in the bill, but as we have decided the case in their favor, on other grounds, it is unnecessary to consider it. We advise the superior court that the plaintiffs' bill be dismissed.

In this opinion STORRS, J., concurred, WAITE, C. J., being absent.

Bill dismissed.

BLACKMAN AND ANOTHER vs. Beha.

The defendants, in an action of trespass before a justice of the peace, pleaded in abatement the defective service of the plaintiff's writ, to which plea the latter demurred. The court sustained the demurrer, and ordered the defendants to answer over, which they refused to do, whereupon judgment was rendered in favor of the plaintiff. The defendants then appealed from the judgment upon the demurrer to the superior court. Held, that such appeal did not vacate the final judgment of the justice, and that the superior court could take no cognizance of the case.

THIS was an action of trespass vi et armis, brought by Alexander Beha against Isaac Blackman and Edwin Wooster, demanding fifty dollars damages.

The suit was answerable before a justice of the peace, on the 4th day of August, 1855, and on that day the defendants appeared, and severally pleaded in abatement the defective service of the plaintiff's writ. To these pleas the plaintiff

Blackman and another v. Beha.

demurred specially, on the ground that said pleas were not signed, either by the defendants or by their attorney. The court decided that said pleas were insufficient, ordered the defendants to answer over, and adjourned the cause to the 10th day of August, when the defendants severally pleaded anew such defective service, and moved that said latter pleas be placed on file and the plaintiff be required to make answer thereto. That motion was disallowed by the court, and the defendants were ordered to make further answer to the plaintiff's declaration. This they neglected and refused to do, whereupon the court rendered judgment in favor of the plaintiff, for fifty dollars damages and costs. From the judgment of said court upon said pleas in abatement, and the answer thereto rendered on the 4th day of August, the defendants appealed to the superior court. Said superior court adjudged said pleas insufficient, and rendered judg ment in favor of the plaintiff to recover his costs.

The defendants thereupon filed a motion in error, and brought the case to this court.

Wooster and Downs, in support of the motion.

Cowles, contra.

ELLSWORTH, J. The judgment of the superior court must be reversed for the want of jurisdiction. The suit was commenced in a justice court, where a plea in abatement was filed, for defective service. The plea, not being signed, it was, for that cause, specially demurred to. Now, without meaning to decide whether the plea in abatement was good or bad, or whether the objection should not have been raised, on the reception of the plea, rather than by demurring to it, we are satisfied that there is error in this record.

The justice overruled the plea in abatement, and ordered further answer to be made, but the defendant, not complying with the order, he gave judgment for damages and costs,

Dann v. Norris.

and that judgment is still in force and unappealed from; so that there are, at this time, two outstanding judgments for the same thing. An appeal, upon the plea in abatement only, did not vacate the final judgment. For this irregularity, we reverse the judgment of the superior court, leaving the defendant to any further relief, to which he may be entitled, according to law.

There is manifest error.

In this opinion, the other judges, STORRS and HINMAN, concurred.

Judgment reversed.

DANN VS. NORRIS.

To constitute a title to a promissory note by endorsement, a delivery of the note by the endorser to the endorsee, or that which is equivalent to such delivery, is necessary.

The holder of a promissory note, who endorses it to an agent, merely for the purpose of enabling the latter to collect it for the former, may sustain a suit on it in his own name, and it is not necessary, for that purpose, that his endorsement should be stuck out, either before, or at the trial.

THIS was an action of assumpsit on a negotiable promissory note, brought by Amos Dann against Benjamin Norris. The note declared on, was made by the defendant; was for the sum of two hundred and fifty-four dollars and eightyseven cents, and payable to the order of the plaintiff, one day after date.

The defendant pleaded the general issue, and the cause

Dann v. Norris.

was tried before the superior court, at the term holden in December, 1855,

On trial, the plaintiff testified that the note described in the declaration, was endorsed by him before the commencement of the plaintiff's suit; that he met one Anthony York, of Lima, in the county of Livingston, state of New York, and requested him to become the endorsee and owner of said note, and the owner and holder of seven other notes of hand, all of which notes were made and executed in the state of New York; the seven last mentioned notes, being made payable to bearer, he delivered to the said York, but when and where, before the commencement of the suit did not appear; neither did it appear when the first mentioned note was endorsed, but it did appear that it was not done when they met, as before described, nor at any time when the parties were together. Said York never had said note in his possession, and never saw the same. At the time of said meeting, said York gave the plaintiff a receipt for said notes, by which he stipulated and agreed with the plaintiff, that the avails should be the plaintiffs', when collected. Subsequently, and before the commencement of this suit, the first mentioned note was put by the plaintiff into the hands of Wm. F. Taylor, Esq. of Danbury, Connecticut, for collection, with said endorsement thereon, and said endorsement continued on said note, up to the day next preceding the trial of said case. The plaintiff also testified that his motive for so endorsing said first mentioned note, and delivering it and said other notes to said York, was to divest himself of any interest therein, and thereby be enabled to testify on the trial of this case, as he supposed by the laws of this state, his testimony would not otherwise be admissible. He further testified and admitted, that after the commencement of said suit, to wit, on the 23d day of June, 1854, he gave his deposition to be used on the trial of this case, wherein, among other things, he testified as follows:-" The owner of all the notes, is Anthony York, of Lima, Livingston county, New York."

Dann v. Norris.

The plaintiff on the trial further testified, that, after the transfer of said notes, a correspondence ensued between Mr. York and said Wm. F. Taylor, Esq., in reference to said first mentioned note of $254.87, and that the plaintiff, wrote the letters which passed from said York to said Taylor, and that said York copied them and forwarded them to Mr. Taylor, in the name, and over the signature of said York, but said Taylor communicated directly with the plaintiff, and never with said York. One of his letters was read on the trial and was as follows:

"DEAR SIR,-I cannot consent to arbitrate with Benjamin Norris. That would be to show that I doubted my own claim. If he wants to pay it, let him, but if he compels me to sue, I shall put more with it. If he pays, you may give a receipt in full of all demands. Let me know at once whether he wants to be sued, and I will attend to every thing needful on my part."

The plaintiff further testified that he was a practising lawyer of the state of New York, and that by the laws of said state all said notes were negotiable. This was all the testimony offered, on said trial, as to the ownership and legal title to said notes. Whereupon the defendant claimed that the present action could not be sustained by the plaintiff; that the legal title to all said notes was in said York, at the commencement of the suit, and so continued, and that as to the note declared on, although if not delivered at the time, it was so endorsed to said York, and said receipt given, yet the legal title then passed; that no formal delivery was necessary, and further, that by the testimony and admissions of the plaintiff, the possession of the notes by Wm. F. Taylor, Esq., for collection, and the correspondence in reference to the same with York, made the transfer perfect, and invested said York with the legal title, and requested the court to charge the jury in conformity to the above claims of the defendant. The court did not so charge the jury, but, on this part of the case, did charge them as follows: