Moore agt. Westervelt, sheriff, &c.

in the meantime suspended. The cause was argued at general term, April 13, 1857, (being twenty-four days before the new fee-bill took effect,) but was not decided until June 20, 1857, when judgment was ordered for plaintiff on the verdict.

The amendments to the Code respecting costs (if applicable to this case) would reduce the costs, prior to the verdict, several hundred dollars. The plaintiff thereupon applied to the court for an order, that judgment be entered nunc pro tunc, as of the 13th day of April, 1857, and that the plaintiff's costs be adjusted as of that time.

Upon the argument, it was suggested that, whatever might be the decision of the court, the clerk should be instructed in what manner to adjust the costs.

HORTON H. BURLOCK, for plaintiff.

First. The court will not suffer a suitor to be prejudiced by their own delay in rendering judgment upon a verdict. The case of death of a party is a familiar example.

Second. The costs were dependent upon the "recovery" of the verdict, and the right to costs attached at that time, and their amount must be regulated by the law then in force. The verdict was the "recovery" meant by the statute. (Code, 304, sub. 4; Van Horne agt. Petrie, 2 Caines' R. 213; Seaman agt. Baily, id. 214; M'Masters agt. Vernon, 4 Duer, 625.)

ALBERT MATHEWS, for defendant.

First. The court have no right to order judgment as of a different date from the fact, and thus falsify their own record, except in the single case of death, to prevent a failure of justice.

In this case, the delay from time of verdict was the ordinary delay in completing the trial, which was unfinished before the jury, and the power to order judgment was suspended until the hearing at the general term, by an act of discretion, and the statute directs that the judgment be entered at general term. (Code, 265.)

Moore agt Westervelt, sheriff, &c

Second. The right to costs is not determined until judgment is ordered. The rate of costs is determined by the statute in force, when the costs can be adjusted. (Briggs agt. Supervisors of Onondaga County, 3 Denio, 173; 4 Wend. 210; Brooklyn Bank agt. Willoughby, 1 Sand. 669; Larmon agt. Aiken, 4 Hill, 591; 1 How. Sp. T. R. 86; 12 John. 315; 8 Cow. 253-259; Rich agt. Husson, 1 Duer, 618; M'Masters agt. Vernon, 1 Abbott, 179; Fitch agt. Livingston, 4 Sand. 712-714; 4 Pr. R. 196; Whalen agt. Westgate, id. 269.)

1. The right to costs, under the Revised Statutes, depended upon them but now it depends solely on the Code. Costs are allowed" upon a recovery," &c. This does not mean upon the verdict being rendered; nor at the time of verdict rendered: but to the party who shall finally recover judgment. A verdict is not a "recovery"-a judgment is a "recovery." A verdict is said to be "rendered," and a judgment "recovered." (Code, §§ 304-307.)

By the court-DUER, Ch. Justice. The court are not satisfied they have power to order judgment nunc pro tunc, as of a date prior to the actual judgment, to enable a party to affect the amount of his costs. The motion is, therefore, denied, without costs. The court, however, are clearly of opinion that the plaintiff is entitled to have his costs adjusted according to the Code as it existed at the time of the verdict, as respects all items prior to that date. The "recovery," which gives the right to costs, mentioned in the statute, means the "verdict," and not the judgment. An order may be entered directing the clerk accordingly-"That the said clerk adjust the plaintiff's costs herein, up to and including the verdict rendered herein, on the 14th of March, 1856, under the Code of 1852, and the subsequent costs of the said plaintiff under the present Code."

Such an order was entered, and the costs adjusted by the clerk in conformity therewith.

White agt. Brown.

SUPREME COURT.

ROBERT WHITE agt. THOMAS BROWN.

Where a defendant interposes a demurrer to a complaint upon a promissory note, in the language of the Code, "that the complaint does not state facts sufficient to constitute a cause of action," it puts in issue the validity of the whole complaint; so that if the complaint is deficient by the non-statement of any fact necessary for the plaintiff to prove to make out his action, the demurrer must be sustained.

Where a complaint upon a promissory note alleged that the defendant, on the 22d April, 1856, at, &c., made his promissory note in writing, dated that day, whereby he promised to pay to William Rork, or order, $132.50, six months after date, for value received, with use, and then and there delivered the same to the said William Rork-giving a copy of the note, purporting to be signed by Thomas Brown; and a statement that the plaintiff was then the bona fide owner and holder of the said note, and that the defendant had not paid the same, or any part thereof, but was justly indebted to the plaintiff therefor. Held, that the complaint did not show that the plaintiff had any interest in the note, or right to maintain an action upon it. By the complaint, it appeared that William Rork was still the owner of the note, and the person to whom it should be paid, and the only person who had a right to direct to whom it should be paid-and that only by his indorsement.

Although it has been held, under the Code, that the assignee of a chose in ac

tion, for instance, a promissory note payable to order, and not indorsed, may maintain an action on it in his own name, it has not yet been held, that the statement of facts necessary to constitute a cause of action in favor of an assignee of a chose in action, such as those by which the chose in action was transferred to him, may be dispensed with in the complaint.

The plaintiff says that he is now the bona fide owner and holder of the note ;this is his conclusion of law; but who is to try whether he is the bona fide owner and holder of the note? All questions of fact must be triable by a jury; but the question whether the plaintiff is a bona fide owner and holder, is a question of law.

Chautauque Special Term, Feb, 1857.

DEMURRER to complaint.

This was an action on a promissory note. There was a demurrer to the complaint. The complaint stated that the defendant, on the 22d day of April, 1856, made his promissory note, dated that day, whereby, for value received, he promised

White agt. Brown.

And

to pay William Rork, or order, one hundred and thirty-two dollars and fifty cents, six months after date, with use. further, that the plaintiff was then the bona fide owner and holder of the said note, and that the defendant had not paid the same, or any part thereof, but was justly indebted to the plaintiff therefor. Wherefore he demands judgment, &c.

The defendant demurred to the said complaint, and alleged the following grounds of demurrer :

1st. The complaint did not state facts sufficient to constitute a cause of action.

2d. The complaint did not show that the plaintiff was the owner of the note or demand described in the complaint.

3d. The complaint did not state facts showing that the plaintiff had any title to the said note.

4th It did not appear, from the complaint, that William Rork, named therein, ever indorsed said note to the plaintiff, or transferred his title to said note to the plaintiff, or to any other person in any way.

5th. The complaint did not show that the said Rork ever parted with his interest or title in the said note.

6th. The manner of the plaintiff's acquiring title to the said note and demand, set forth in the complaint, (if any such title of the plaintiff appears therein, which defendant denies,) was not sufficiently set forth in the complaint.

7th. The complaint did not state facts showing that the plaintiff was the holder and owner of the note described in the complaint.

The demurrer was argued at Chautauque special term February 26, 1857.

D. SHERMAN, for defendant.

E. S. SPENCER, for plaintiff.

MULLETT, Justice. The defendant in this case alleges or assigns seven grounds, or causes of demurrer, the first of which is, "That the complaint does not state facts sufficient to constitute a cause of action." The decision of the first cause of demurrer

White agt. Brown.

will embrace the whole case; for this cause of demurrer puts in issue the validity of the whole complaint, so that if the complaint is deficient by the non-statement of any fact necessary for the plaintiff to prove, to make out his action, the demurrer must be sustained. (4 How. Pr. R. 229; 7 id. 378; 8 id. 343; 11 id. 216.)

The complaint was on a promissory note, and alleged that the said defendant, on the 22d day of April, 1856, at, &c., made his promissory note in writing, dated that day, whereby, for value received, he promised to pay to William Rork, or order, one hundred and thirty-two dollars and fifty cents, six months after date, with use; and then and there delivered the same to the said William Rork. The complaint then contained a copy of the said note, purporting to be signed Thomas Brown, and a statement that the plaintiff was then the bona fide owner and holder of the said note, and that the defendant had not paid the same, or any part thereof, but was justly indebted to the plaintiff therefor.

The principal defect in this complaint, insisted upon by the defendant, under his demurrer, is, that the complaint does not show that the plaintiff has any interest in the note, or right to maintain an action upon it. The complaint shows that the note, when made, was the property of William Rork, and, as a promissory note, it could be passed from him only by his order or indorsement. (Story on Promissory Notes, §§ 48, 120, 121.)

An inflexible rule of the common law requires that a promissory note, payable to the order of any person, to be negotiated so as to carry to the holder the right of a bona fide holder of a negotiable promissory note, should be first indorsed by the person to whose order it was made payable. When this fact appears on the paper, the holder is presumed to be the bona fide owner of the note, and to hold it free from any defence which might be set up by a former party. (Hedges agt. Sealy, 9 Barb. Sup. C. Rep. 214, and the cases there cited.)

The complaint in this action does not show any title in the plaintiff to the note, set up in it, as an indorser, or a party to the note, or any right as such to maintain an action upon it.