If a bill be made payable to A., or order, for the use of B., B. has but an equitable title, and the right of transfer is in A. alone (k). CHAPTER ment. Indorsements are of two sorts: an indorsement in blank, Blank indorseor, as it is sometimes termed, a blank indorsement, and an indorsement in full, or special indorsement (7). No particular form of words is essential to any indorsement. A blank indorsement is made by the mere signature of the indorser (usually and properly, though not necessarily) on the back of the bill (m); its effect is to make the instrument thereafter payable to bearer (n). "An indorsement in blank," says Lord Ellenborough, "conveys a joint right of action to as many as agree in suing on the bill" (o). Therefore, where three persons separately indorsed a bill for the accommodation of the drawer, which was afterwards dishonoured and returned to them, and they paid the amount among them, it was held that they might bring a joint action against a previous indorser (p). But where a bill of exchange was, by the direction of the payee, indorsed in blank, and delivered to A., B. & Co., who were bankers, on the account of the estate of an insolvent, which was vested in trustees for the benefit of his creditors, Lord Ellenborough held, that A. and B., two of the members of this firm, and also trustees, could not, conjointly with another trustee who was not a member of the firm, maintain an action against the indorser, without some evidence of the transfer of the bill to them, as trustees, by the firm, by delivery or otherwise (q). An indorsement in full, besides the signature of the in- Special indorsedorser, expresses in whose favour the indorsement is made. ment. Thus, an indorsement in full by A. B. is in this form: "Pay Mr. C. D., or order. A. B." The signature of the indorser being subscribed to the direction, its effect is to make the instrument payable to C. D. or his order only; and, accordingly, C. D. cannot transfer it otherwise than by indorsement. The omission of the words, "or order," is not material in a special indorsement; for the indorsee takes it (k) Evans v. Cramlington, Carth. 5; Cramlington v. Evans, 2 Vent. 207; Skin. 264. (1) The mark of a person who cannot write is a sufficient indorsement. George v. Surrey, M. & M. 516. (m) See infra. (n) Peacock v. Rhodes, Doug. 611; Francis v. Mott, Doug. 612. (0) Ord v. Portal, 3 Camp. 239. (p) Low v. Copestake, 3 C. & P. 300. (q) Machell v. Kinnear, 1 Stark. 499. CHAPTER Indorsements on the face of a bill. An allonge. Misspelt indorsement. By a plurality of holders. Conversion of indorsement. with all its incidents, and, among the rest, with its negotiable quality, if it were originally made payable to order (r). If a bill be once indorsed in blank, though afterwards indorsed in full, it will still, as against the drawer, the payee, the acceptor, the blank indorser, and all indorsers before him, be payable to bearer (s); though, as against the special indorser himself, title must be made through his indorsee. It is not essential to the validity of these written transfers, though called indorsements, that they be on the back; they may be on the face of a bill of exchange or promissory note (t). There is no legal limit to the number of indorsements, and if there be not room to write them all distinctly on the back of the bill, the supernumerary indorsements may be written on a slip of paper annexed to the bill, called, in French, an "allonge." The allonge is thenceforth part of the bill, and requires no additional stamp. A misspelling will not necessarily avoid an indorsement (u). If two persons, not being partners, are payees of a bill or note, both must indorse (x). The indorsee may convert a blank indorsement into a blank into special special one in his own favour, by superscribing the necessary words. C. having a bill payable to himself, or order, indorsed it in blank, leaving a vacant space above, and sent it to J. S., his friend, who got it accepted; but the money not being paid, C. brought an action against the acceptor, and it was objected that the action should have been brought by J. S. But, per Holt, C. J.: "J. S. had it in his power to act either as servant or assignee. If he had filled up the (r) Moore v. Manning, Com. Rep. 311; Acheson v. Fountain, 1 Stra. 557; Edie v. East India Company, 2 Burr. 1216; 1 W. Bl. 295, S.C.; Cunliffe v. Whitehead, 3 Bing. N. C. 829; 5 Scott, 31; 6 Dowl. 63, S. C.; Gay v. Lander, 6 C. B. 336. (8) Smith v. Clarke, Peake, 225; Walker v. M'Donald, 2 Exch. 527; 17 L. J., Exch. 377, S. C. (t) Reg. v. Bigge, 1 Stra. 18; Ex parte Yates, 27 L. J., Bkey. 9; Yarborough v. Bank of England, 16 East, 6. (u) See Leonard v. Wilson, 2 C. & M. 589; 4 Tyr. 415, S. C. (x) Carvick v. Vickery, 2 Doug. 653, n.; see ante, as to indorsements by ex-partners, and by co-executors. blank space, making the bill payable to him, as he might have done if he would, that would have witnessed his election to receive it as indorsee" (y). The indorsee may also convert the blank indorsement into a special one in favour of a stranger, by superscribing above the indorsement the words "Pay A. B. or order :" and, if he transfer the bill in that way instead of indorsing, he is not liable as indorser (z). sary. CHAPTER ΧΙ. Neither indorsement nor acceptance (a) are complete Delivery necesbefore delivery of the bill. Where A. specially indorsed certain bills to B., sealed them up in a parcel, and left them in charge with his own servant to be given to the postman, it was held that the special indorsement did not transfer the property in the bills till delivery, and that delivery to the servant was not sufficient, though it would have been otherwise had the delivery been made to the postman (b). But where A. and B. carried on business in partnership, and being indebted to C., A. who acted as C.'s agent, with the concurrence of B., indorsed a bill in the name of the firm, and placed it amongst the securities which he held for C., but no communication of the fact was made to C. It was held to be a good indorsement by the firm to C. (c). Hence the word indorse in the declaration on a bill imports a delivery and transfer to the indorsee, so as to confer title. Therefore, under a traverse of the indorsement the defendant may show that the circumstances were such as that the indorsement did not effect a legal delivery of the bill to the indorsee (d), whether the actual delivery were to a third person, or to the indorsee himself (e). Thirdly, as to the liability of an indorser. LIABILITY OF Every indorser of a bill is in the nature of a new drawer (ƒ); INDORSER. (y) Clark v. Pigott, 12 Mod. 193; 1 Salk. 126, S. C. (2) Vincent v. Horlock, 1 Camp. 442. (a) Cox v. Troy, 5 B. & Ald. 474; 1 D. & Ry. 38, S. C.; Chapman v. Cotterell, 34 L. J., Exch. 186. (b) Rex v. Lambton, 5 Price, 428; Adams v. Jones, 4 P. & D. 174; 12 Ad. & El. 455; Brind v. Hampshire, 1 M. & W. 369; Bayley on Bills, 6th ed. 137. (c) Lysaght v. Bryant, 9 C. B. 46. (d) Marston v. Allen, 8 M. & W. 494; Adams v. Jones, 12 Ad. Denton & Satin CR5 CP (e) Bell v. Lord Ingestre, 19 L. J., Q. B. 71; 12 Q. B. 317, S. C.; and see Barber v. Richards, 6 Exch. 63; Lloyd v. Howard, 15 Q. B. 995. (f) Penny v. Innes, 1 C., M. & R. 441; 5 Tyrw. 107, S. C.; see Allen v. Walker, 2 M. & W. 317; 5 Dowl. 460; 1 M. & W. 44, S. C.; see ante, p. 147. 475 CHAPTER How declined. By indorsement sans recours. By agreement, express or implied. and is liable to every succeeding holder in default of acceptance or payment by the drawee. An indorser contracts that if the drawee shall not at maturity pay the bill, he, the indorser, will, on receiving due notice of the dishonour, pay the holder the sum which the drawee ought to have paid, together with such damages as the law prescribes or allows as an indemnity (g). He also contracts, in the case of a bill payable at a future date, that if the drawee refuse to accept on presentment, he will in like manner pay (h). But a man may indorse a bill without incurring personal responsibility in several ways. First, by expressing in his indorsement that it is made with this qualification, that he shall not be liable on default of acceptance or payment by the drawee. Such qualified indorsement will be made by annexing in French the words sans recours," or in English, "without recourse to me," or any equivalent expression (i). 66 There may, even without an agreement, be an indorsement which confers title without imposing liability, as in the case of an indorsement by an infant (k); of an indorsement by directors of a joint stock company not in such a form as to make the company liable. And if there be a written or even a verbal agreement between an indorser and his immediate indorsee, that the indorsee shall not sue the indorser, but the acceptor only, it has been held, that such an agreement is a good defence on the part of the indorser against his immediate indorsee suing in breach of the agreement (1). Indeed, the contract between indorser and indorsee does not consist exclusively of the writing popularly called an indorsement, though that indorsement be a necessary part of it. The contract consists partly of the written indorse (g) Suse v. Pompe, 30 L. J., C. P. 75; 8 C. B., N. S. 538, S. C. (h) Such also is the indorser's liability as understood in America (Story on Bills, s. 107). (i) The words "at the indorsee's own risk "have been held in America to exclude the personal responsibility of an indorser. See Rice v. Stearns, 3 Mass. Rep. 225; Mott v. Hicks, 1 Cowen, 512. (k) Smith v. Johnson, 27 L. J., Exch. 363; 3 H. & N. 222, S. C. (1) Pike v. Street, 1 M. & M. 226; 1 Dans. & L. 159, S. C.; and see Clark v. Pigott, 1 Salk. 126; 12 Mod. 192, S. C.; Goupy v. Harden, 7 Taunt. 159; Soares v. Glyn, post; see also Thompson v. Clubly, 1 M. & W. 212; Byles on Bills, 5th American edition, 267. ment, partly of the delivery of the bill to the indorsee, and may also consist partly of the mutual understanding and intention with which the delivery was made by the indorser and received by the indorsee. That intention may be collected from the words of the parties to the contract, either spoken or written, from the usage of the place, or of the trade, from the course of dealing between the parties, or from their relative situation (m). But though a special contract qualifying the ordinary liability of an indorser may affect the rights of the immediate indorsee, and those who stand merely on his title, it is plain that it cannot restrain the rights of subsequent transferees for value without notice. CHAPTER indorsement. A party transferring a bill may also (as we have just By converting seen) decline personal responsibility, by converting an ex- blank into special isting blank indorsement into a special one in favour of his transferee (n). be suspended on a condition. A bill may be indorsed conditionally, so as to impose on Indorsement may the drawee, who afterwards accepts, a liability to pay the bill to the indorsee or his transferees in a particular event only. Where a bill was indorsed on such a condition by the payee, afterwards accepted, then passed through several hands, and was finally paid by the acceptor before the condition was satisfied, it was held that the acceptor was liable to pay the bill again to the payee (o). But it seems that a bill cannot be indorsed with a condition that in a certain event the indorsee shall not retain the power of further indorsing over (p). And it is clear that parol evidence, or evidence of intention, cannot be allowed to engraft such a condition, so as to affect the title of subsequent holders for value without notice (q). An indorsement admits the signature and capacity of what an indorseevery prior party (r). And in an action against an indorser ment admits. (m) Kidson v. Dilworth, 5 Price, 564; Castrique v. Battigieg, 10 Moore, P. C. Cases, 94. See ante, Chap. VIII. and post, Chap. XIII., (q) In America, also, it has been held that an indorsement of a note payable on a contingency does not impede the negotiability and Byles on Bills, 5th American of the instrument, though it will chapter ou edition, p. 196.e also ante (n) As to the liability of an indorser, after non-payment, by the drawee, see post. (o) Robertson v. Kensington, 4 Taunt. 30; Sarage v. Aldren, 2 Stark, 232, (p) Soares v. Glyn, 14 L. J., Q B. 313; 8 Q. B. 24, S. C. operate as notice to subsequent (r) Lambert v. Oakes, 1 Lord agreements |