The indorsee of a lost bill, where the bill has been indorsed in blank, cannot recover at law against the acceptor, although a sufficient indemnity is tendered (o); he must resort to a court of equity for relief (p). But where a bill lost has a special indorsement upon it, an action may be maintained, without producing the bill (q)• So the maker of a note, not negociable, cannot refuse to pay the amount when due, on the ground that the payee has not got it in his possession or power, and cannot produce it for the purpose of delivering it up to the maker on payment (r). Liability of the Drawer on Non-acceptance. If the drawee, on presentment for acceptance, dishonour the bill, the drawer may be called on for immediate payment. A foreign bill of exchange was drawn payable at 120 days after sight, but when the bill was presented for acceptance, that was refused; upon which an action was immediately brought against the drawer, without waiting till the expiration of the 120 days. On the trial, the defendant objected, that he was not liable until the expiration of the 120 days, and offered to call evidence to prove, that the custom of merchants was such. But Lord Mansfield, C. J., said, the law was clearly otherwise, and refused to hear the evidence. Bright v. Purrier, Bull. N. P. 269, cited by Ellenborough, C. J., in Ballingalls v. Gloster, 3 East, 483. In Milford v. Mayor, 1 Doug. 55, where the defendant was holden to bail, on an affidavit of debt, on a bill of exchange, drawn by defendant and indorsed to plaintiff, although the bill was not due at the time of the arrest; yet the drawee having dishonoured the bill, the court refused to discharge the defendant. In Macarty v. Barrow, Str. 949, (more fully and accurately reported from a note supplied by Wilmot, C. J., in 3 Wils. 17, and from Ford's note, in 7 East, 437, n. (a), and recognized in Francis v. Rucker, Ambl. 672,) the defendant having drawn bills on Spain, which were afterwards protested for non-acceptance, became a bankrupt before they were returned, and, being arrested, he was discharged upon motion, on the ground that it was a debt contracted before the bankruptcy, and at the very instant when the bills were drawn. And in Ballingalls and another v. Gloster, 3 East, 481, it was adjudged, that the indorsee of a foreign bill of exchange might bring an action against the person who had indorsed it to him, immediately on the non-acceptance of the drawee, although the time for which the bill was drawn was not elapsed, on the ground that every indorser was in the nature of a new drawer. And Lord Ellenborough, C. J., said, that, in a late case tried before him at Guildhall, it appeared to be the universally received law on (0) Pierson v. Hutchinson, 2 Campb. 211; Hansard v. Robinson, 7 B. & C. 90. (p) See Walmsley v. Child, 1 Ves. 341, and Exp. Greenway, 6 Ves. jun. 812. (g) Long v. Bailie, 2 Campb. 214, n. See also Brown v. Messiter, 3 M. & S. 281. (r) Wain v. Bailey, 10 A. & E. 616. the Continent, that an indorser was liable immediately on the nonacceptance of the drawee. V. Of the Transfer of Bills of Exchange, p. 342; Of the Party in whom the Right of Transfer is vested, p. 349. BILLS payable to order (6) or to bearer, are negociable, and the transfer of them for a good and valuable consideration vests a right of action in the assignee. It is a rule of the common law, that choses in action are not assignable; but in the case of bills of exchange there is an exception to this rule, and in favour of commercial intercourse they are, by the custom of merchants, assignable to a third person not named in the bill, or party to the contract, so as to vest in the assignee a right of action in his own name. Whether a bill of exchange be negociable or not, is a question of law (t). In respect of bills payable to order, the custom has directed that the assignment should be made by a writing on the bill, called an indorsement; and in respect of bills payable to bearer, that the assignment should be constituted by delivery only (7). A transfer of a bill of exchange by indorsement is an act similar in effect to making a new bill, the indorser being in the nature of a new drawer (u). Indorsements are of two kinds: 1st, blank; 2nd, full or special. An indorsement in blank, which is the most common, is made by writing the indorser's name on the back of the bill, without any mention of the name of the person in whose favour the indorsement is made. Indorsements, whether blank or special, subsequent to a blank indorsement by the payee, may be struck out even at the (t) Grant v. Vaughan, 3 Burr. 1523, 1526, 1528. (u) Per Holt, C. J., Skin. 411; Hard wicke, Ch., 1 Atk. 282; Lord Mansfield, C. J., 2 Burr. 674; Lord Ellenborough, C. J., 3 East, 482. (6) It must be observed, that the indorsement of a bill which has not the words, "or to his order" is good, or of the same effect between indorser and indorsee to make the indorser chargeable to the indorsee. Per Holt, C. J., Hill v. Lewis, Salk. 133. (7) If a bill be payable to A., or bearer, and A. delivers it over for money received without indorsement, this is a sale of the bill, and the seller does not become a new security, for if he had indorsed it, he had become a new security, and then he had been liable upon the new indorsement. Per Holt, C. J., Governor and Company of the Bank of England v. Newman, Lord Raym. 442; cited in Emly v. Lye, 15 East, 7, and post, tit. "Partners." trial (t); consequently a remote indorsee may declare as the immediate indorsee of the payee or first indorser. Indorsees of a bill of exchange against acceptor. The bill was indorsed in blank by the payee, and after several indorsements it came to one Jackson, a bankrupt, (whose assignees had indemnified defendant,) under a special indorsement to him or order. Jackson, without indorsing the bill, sent it to Muir and Atkinson, who discounted it with plaintiffs. Plaintiffs had struck out all the indorsements except the first. Per Lord Kenyon, C. J. "The fair holder of a bill may consider himself as the indorsee of the payee, and strike out all the other indorsements. This special indorsement being made after the payee had indorsed it, cannot affect the title of the present plaintiffs (u). So where there were several blank indorsements intermediate between the indorsement by the payee and the indorsement by the defendant, and plaintiff declared that the payee indorsed the bill to the defendant, who indorsed it to the plaintiff; this was holden good (v). If A., the payee of a bill of exchange, indorses it in blank (w) and delivers it to B., and B. writes above A.'s indorsement, " Pay the contents to C." without subscribing his own name, B. is not liable to C. as an indorser of the bill for, in order to make a party liable as an indorser, his name must appear written with intent to indorse. As by the law of France, an indorsement in blank does not transfer any property in a bill, the holder of a bill drawn in that country, and indorsed there in blank, cannot (x) recover against the acceptor in the courts of this country. An indorsement in full, or special indorsement, mentions the name of the indorsee, as thus, "Pay the contents to A. B." and is subscribed with the name of the indorser. A full or special indorsement contains in itself a transfer of the interest in the bill to the person named in such indorsement. Poth. Traité du Contrat de Change, Part I. chap. 2, s. 23, 24. But a bare indorsement without other words purporting an assignment, does not work an alteration of the property. Per Cur., Lucas v. Haynes, Salk. 130. Clark having a bill of exchange payable to him or order, put his name upon it, leaving a vacant space above, and sent it to J. S., his friend, who got it accepted; but the money not being paid, Clark brought assumpsit 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 a servant or assignee. If he had filled up the blank space, making the bill payable to him, as he might have done if he would, that would have witnessed his election to have received it as indorsee. The property of the bill would have been transferred to him, and he only could have maintained this action against the acceptor; but since (t) Theed v. Lovell, Str. 1103. (u) Smith and others v. Clarke, Peake's N. P. C. 225; 1 Esp. N. P. C. 180, S. C. (v) Chaters v. Bell, 4 Esp. N. P. C. 210. Per Lord Ellenborough, C. J. he has not filled up the blank space, his intention is presumed to act as servant only to Clark, whose name was put there; that on payment thereof, a receipt for the money might be written over his name, and therefore the action is maintainable by Clark (y). From the foregoing case it appears that a blank indorsement is an equivocal fact, and that it is in the power of the party to whom the bill is delivered to make what use he pleases of such an indorsement. He may either use it as an acquittance to discharge the bill, or as an assignment to charge the indorser. Where a bill was specially indorsed by the payee, and the defendant, before its indorsement by the special indorsees, indorsed it; it was holden (2), that as against the defendant it operated as a new instrument, although it had no operation with regard to the other parties to the bill, but that it did not create a new one, to require a fresh stamp. Promissory notes and bills of exchange are frequently indorsed in this manner, "Pay the money to my use," in order to prevent their being filled up with such an indorsement as passes the interest. Per Lord Hardwicke, Ch., in Snee v. Prescott, 1 Atk. 249. "A bill, though once negociable, is certainly capable of being restrained. I remember this being determined on argument. A blank indorsement makes the bill payable to bearer; but by a special indorsement the holder may stop the negociability." Per Lord Mansfield, C. J., Ancher v. Bank of England, Doug. 639. These positions were recognized in Sigourney v. Lloyd, 8 B. & C. 622, where a bill payable to the order of A. was indorsed by A. to B., and then B. indorsed thus: "Pay to C. or his order for my use;" it was holden, (notwithstanding the decision in Evans v. Cramlington, Carth. 5, and post, p. 349,) that this indorsement was restrictive, and that the property in the bill remained in B. On error, in Exch. Chamber, judgment was affirmed, 5 Bingh. 525. It is not necessary that in an indorsement of this kind the words "or order" should be subjoined to the name of the indorsee; for if a bill be drawn payable to order, the negociability of the bill will not be restrained by the omission of the words "or order" in the indorsement, as will appear from the following cases:— Upon a case made at nisi prius (a), coram Pratt, C. J., it ap peared, that the plaintiff had declared on an indorsement made by A., whereby he appointed the payment to be to B. or order, and upon producing the bill in evidence, it appeared to be payable to A. or order, but the indorsement was in these words, Pay the contents to B.;" and therefore it was objected, that the indorsement, not being to order, did not agree with the plaintiff's declaration; but, upon consideration, the whole court were of opinion, it was (y) Clark v. Pigot, Salk. 126, and 12 Mod. 192. (2) Penny v. Innes, 1 Cr. M. & R. 439 ; 5 Tyrw. 107. (a) Acheson v. Fountain, Str. 557. well enough, that being the legal import of the indorsement; and that the plaintiff might upon this have indorsed it over to another, who would be the proper order of the first indorser. Before this decision in the case of Acheson v. Fountain, the same doctrine had been laid down with respect to a promissory note, in the case of More v. Manning, Comyn's R. 311, viz. that where a note is drawn payable to order, and the payee indorses it to A. (omitting the words "or order,") A. has (notwithstanding such omission) all the interest in the note, and may indorse it to B., who, upon such indorsement, may maintain an action against the maker. So where a foreign bill of exchange was drawn by A. on B. (b), payable to C. or order, and accepted by B., and C. indorsed it to D. without adding the words "or order," and D. afterwards indorsed it to E., who brought an action against B. the acceptor, for non-payment; evidence having been adduced at the trial of the usage of merchants with respect to indorsements of bills payable to order, where the words "or order" were omitted in the indorsement, which evidence was contradictory, some merchants declaring that the omission did not make any difference, others, that it restrained the negociability of the bill, and made it payable to the indorsee only; the jury found a verdict for the defendant.-On a motion for a new trial, on the ground that evidence of the usage ought not to have been allowed; that the custom of merchants was part of the law of England, and that the law of England was fully settled upon this point: the court were unanimous that a new trial ought to be granted; and Lord Mansfield, C. J., said, he was clear that the evidence ought not to have been admitted, for the law was fully settled in the cases of More v. Manning and Acheson v. Fountain, ante. The other judges concurred, and Denison, J., said, that there was not any instance of a restrictive limitation, where a bill was originally made payable to A. or order; that he had never heard of an indorsement to A. only, and that in general the indorsement followed the nature of the thing indorsed. As a bill of exchange payable to A.'s order, is, by the custom of merchants, payable to A. if he does not make any order; so, by an indorsement of a bill of exchange to the order of A., A. is entitled to payment if he makes no order. A bill of exchange was drawn (c), payable to I. S., who indorsed it in this manner: "Pay the contents of the bill unto the order of Mr. Fisher." Fisher brought an action as indorsee, averring he had made no order to receive the money. The defendant demurred to the declaration, supposing that Fisher could not maintain the action, because the indorsement was not to him, but to his order; sed per Curiam: The action is well brought against the indorser; for among tradesmen this form of indorsement is (b) Edie v. East India Company, 2 Burr. 1216, and 1 Bl. R. 295, recognized since the new rules, which do not make any al teration in the law merchant, in Cunliffe |