by John Marshall Harlan

“ The fifth section provides that any assignee to whom such sum of money or personal property is by indorsement made payable, or, he being dead, his executor or administrator, may in his own name institute and maintain the same kind of action for the rocovery thereof against the person making and executing the note, bond, bill, or other instrument in writing, or against his heirs, executors, or administrators, as might have been maintained against him by the obligee or payee, in case it had not been assigned. ”

“ This is shown most clearly by the other provisions of the contract. The notes became the absolute property of the vendors. As has been stated, they all fell due within four months, and it was expected they would be paid. The vendors were expressly allowed to collect them at their maturity, and it was agreed that whatever sums should be collected on account of them should be retained by the vendors for their own use. No part of the money was to be returned to the railroad company in any event; not even if the cars should be returned. ”

“ All promissory notes, bonds, due-bills, and other instruments in writing, made or to be made by any person, body politic or corporate, whereby such person promises or agrees to pay any sum of money or article of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of peson al property to be due to any other person, shall be taken to be due and payable, and the sum of money or article of personal property therein mentioned shall, by virtue thereof, be due and payable as therein expressed. ”

“ The marks on the cars showed that they were to go into the possession of the maker, or of its transferee, to be used. The suggestion that the maker could not have been compelled to pay if the cars had been destroyed before the maturity of the notes is without any foundation upon which to rest. The agreement cannot properly be so construed. The cars having been sold and delivered to the maker, the payee had no interest remaining in them except by way of security for the payment of the notes given for the price. ”

“ Smith, 28 Ill. 397, 406, 408, the principal question was as to the negotiability under the above statute of the following instrument: 'Chicago, 21st of January, 1859. Received from teams in our pork house, No. 114 West Harrison street, 280 hogs, weighing 45,545 pounds, the product of which we promise to deliver to the order of Messrs. Stevens & Brother indorsed hereon. G. & J. STEWART.' The court said: 'Testing the writing by this statute, there cannot be a doubt upon its assignability. It is an instrument in writing. It purports to be made by persons. ”