The main legal point established in the judgment is that the plaintiff, as the assignee of the actionable claim, may sue to enforce it, even though he cannot sue upon the note as the endorsee or as one of two joint payees.

Shephard, J.

1. It is objected that Rule 428 is ultra vires for the reason that it is in conflict with Section 69 of the Presidency Small Cause Courts Act. But this is not so. The rule and the section proceed on different lines, the rule providing for cases in which the Judge is in doubt and not for cases covered by the section.

2. I am of opinion that as endorsee the plaintiff cannot sue on the note, but that as assignee of the actionable claim he may sue to enforce it. Accordingly I answer the question referred in the affirmative.

Bhashyam Ayyangar, J.

3. I concur with my learned colleague that the rule is not ultra vires. The plaintiff, one of the two joint payees of a negotiable promissory note payable on demand made by the defendant on 11th July 1889, sues the defendant for the recovery of the sum of Rs. 261-7-0, being the principal and interest due on the note. The plaintiff sues alone on the strength of the other joint payee V. Miligiri Rao having endorsed the notes in his favour on the 5th January 1900. The defendant takes the preliminary objection that the suit is not maintainable, as one of two joint payees cannot endorse the note, notwithstanding that the endorses is the other joint payee. This objection is, in my opinion, well founded under Section 51 of the Negotiable Instruments Act, which in this respect is in accordance with the English law. The plaintiff therefore cannot sue upon the note as endorsee nor can he sue upon it as one of two joint payees. Every endorsement of a negotiable promissory note operating in contemplation of law between the parties thereto as the drawing of a bill of exchange by the endorser, in favour of the endorsees, such endorsement being only a request of the endorser that the maker of the promissory note (who stands in this respect vary much in the position of an acceptor) would pay the amount to the endorsee or to any other holder in due course (vide Story on Promissory Notes, 7th edition, Section 129, and Byles on Bills, 16th edition page 180), there is nothing to preclude a payee endorsing it in his own favour or two joint payees endorsing it in favour of one of themselves just as a drawer of a bill of exchange may draw it payable to himself. If, in the present case, the plaintiff also has signed the endorsement in his favour at the time of the endorsement, or even prior to the institution of the suit, the action would have been maintainable by him as endorsee. But though the action may not be maintainable by him as endorsee, he can recover the amount due under the note, if there be no other defence to the suit, as assignee of the chose in action by reason of the other joint payee having transferred his interest therein to him. Though the endorsement cannot operate as such under the law merchant, it can be relied upon as evidence of an assignment by way of release, vide Chester v. Willan 2 Saund. 96 and Eustace v. Scawan Cro. Jac. 696 of Miligiri Raos interest in the promissory note in favour of the plaintiff without a valid endorsement. The important difference between transfer by endorsement and transfer otherwise than by endorsement of a negotiable instrument is that in the latter case, the assignee will acquire in the bill or note as a chattel no more than the right, title and interest of his assignor, whereas in the former case the assignee by endorsement will have all the rights and advantages of a holder in due course of a negotiable instrument vide Whistler v. Forster 32 L.J. 161 Harrop v. Fisher 30 L.J. 283 per Byles J. at page 286, and Ramachandra Rao v. Abeeb Rowthan1 decided by Shephard and Moore, JJ., on the 26th September 1898, and Chalmers Bills of Exchange, 3rd edition, page 129]. In the present case the actionable claim under the promissory note was transferred before the 2nd February 1900 on which date Act II of 1900 amending the Transfer of Property Act, 1882, came into force. It is therefore unnecessary to consider whether the transfer otherwise than by end