Therefore, where three persons separately indorsed a bill for the accommodation of the drawer, which was afterwards dishonored and returned to them, and they paid the amount among them, it was

Indorsement by a stranger intending to be surety, held that it bound him to payment in case of default of the maker, provided there was due demand and notice Moore v. Cross, 23 Barbour 534.

One who indorses before the payee is not liable to the payee, but as indorser to subsequent indorsers. The Statute of Frauds will not allow parol evidence to show that his engagement was that of a guarantor: Schafer v. Farmers' and Mechanics' Bank, 9 P. F. Smith 144.

For other cases bearing upon the same question see Lester v. Paine, 39 Barb. 616; Smith v. Kessler, 8 Wright 142; Van Doren v. Tjader, 1 Nevada 380; Houghton v. Ely, 26 Wisc. 181; Brown v. Butler, 99 Mass. 179; Seymour v. Mickey, 15 Ohio St. 515; Blatchford v. Milliken, 35 Illinois 434; Essex Co. v. Edmunds, 12 Gray 273; Firman v. Blood, 2 Kansas 496; Deitz v. Corwin, 35 Missouri 376; Beidman v. Gray, Ibid. 282; Badger v. Barnabee, 17 New Hamp. 120; Veach v. Thompson, 15 Iowa 380; Pearson v. Stoddard, 9 Gray 199; Peckham v. Gilman, 7 Minn. 446; Jones v. Goodwin, 39 Cal. 493; Barkhead v. Williams, 1 Mich. C. C. 38; Patch v. Washburn, 82 Mass. 82; Lincoln v. Hinzey, 51 Illinois 435; Rickey v. Damison, 48 Missouri 61; Cason v. Wallace, 4 Bush 388; Kamin v. Holland, 2 Oregon 59; White v. Weaver, 41 Illinois 409; Sturtevant v. Randall, 53 Maine 149; Bacon v. Burnham, 37 New York 614; Price v. Lavender, 38 Alabama 389; Robinson v. Bartlett, 11 Minn. 410; Dietrich v. Mitchell, 43 Illinois 40; Killian v. Ashley, 24 Arkansas 511; Moore v. Folsom, 14 Minn. 340; Collins v. Trist, 20 Louis. Ann. 348.

The decisions upon the subject of irregular indorsements have multiplied and continue to multiply to such an extent that nothing further can be done than to cite the principal ones. It would require a treatise to state them, and. to reconcile them would be entirely impossible. Every state seems to have adopted its own system: Smith v. Long, 40 Mich. 555; Herbage v. McEntee, Ibid. 337; Fuller v. Scott, 8 Kan. 25; Craddock v. Vanness, 35 New Jers. Law 517; Houston v. Bruner, 39 Ind. 375; Walz v. Albuck, 37 Md. 404; Seymour v. Farrell, 51 Mo. 95; Mammon v. Hartman, 51 Mo. 168; Phelps v. Vischer, 50 N. Y. 69; Dubois v. Mason, 127 Mass. 37; Bank v. Law, Ibid. 72; Woods v. Woods, Ibid. 141; Carpenter v. McLaughlin, 12 R. I. 270; Hoffman v. Moore, 82 N. C. 313; Grebb v. Loxen, 7 Mo. App. 97; Stein v. Passmore, 25 Minn. 256; Bronson v. Alexander, 48 Ind. 244; Roberts v. Master, 40 Ind. 460; Horton v. Manning, 37 Texas 23; Gilpin v. Marley, 4 Houst. 284; Browning v. Merrill, 61 Ind. 425; Sibley v. Bank, 41 Mich. 196; Best v. Hoppie, 3 Col. 137; McGee v. Connor, 1 Utah 92; Paine v. Northe, 53 How. Pr. 273; Boynton v. Pierce, 79 Ill. 145; Coulter v. Richmond, 50 N. Y. 478; Nooks v. Anderson, 58 Ala. 238; Good v. Martin, 5 Otto 90; Num v. Chittenden, 56 Ind. 462; Burton v. Hansford, 10 W. Va. 470; Gillespie v. Wheeler, 46 Conn. 410; Eberhart v. Page, 89 Ill. 550; Culbertson v. Smith, 52 Md. 628.

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 indorser, expresses in whose favor the indorsement is made. 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 with all its incidents, and, among the *rest, with its negotiable quality, if it were originally made payable to order.(r)

[*152]

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; (8) 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)1

(p) Low v. Copestake, 3 C. & P. 300 (14 E. C. L. R.). (9) Machell v. Kinnear, 1 Stark. 499 (2 E. C. L. R.).

(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; Cunliffe v. Whitehead, 3 Bing. N. C. 829 (32 E. C. L. R.); 5 Scott 31; 6 Dowl. 63; Gay v. Lander, 6 C. B. 336 (60 E. C. L. R.).

(s) Smith v. Clarke, Peake 225; Walker v. M'Donald, 2 Exch. 527; 17 L. J., Exch. 377.

(t) Reg. v. Bigge, 1 Stra, 18; Ex parte Yates, 27 L. J., Bkcy. 9; Yarborough v. Bank of England, 16 East 6.

1 1 Herring v. Woodhull, 29 Illinois 92. It matters not where the maker or

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)2

The indorsee may convert a blank indorsement into a special one in his own favor, 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 blank space, making the bill payable to him, as he might have done if he would, that would have witnessed *his [*153] election to receive it as indorsee."(y) The indorsee may also convert the blank indorsement into a special one in favor of a

(u) See Leonard v. Wilson, 2 C. & M. 589; 4 Tyr. 415.

(x) Carvick v. Vickery, 2 Doug. 653, n.; see ante, as to indorsements by ex-partners and by co-executors.

(y) Clark v. Pigott, 12 Mod. 193; 1 Salk. 126.

indorsers sign, so it appear from the note what their respective liabilities are: Quin v. Sterne, 26 Georgia 223; Haines v. Dubois, 1 Vroom 259; Herring v. Woodhull, 29 Illinois 92; Arnot v. Symonds, 85 Pa. St. 49.

1 French v. Turner, 15 Indiana 59. An indorsement or transfer of a promissory note may be on another paper attached to and made a part of the note, called an allonge, and it is not essential that there should have been a physical impossibility of writing the indorsement or transfer on the note itself, but it may be on another paper attached to the note whenever necessity or the convenience of the parties require it: Crosley v. Roub, 16 Wisc. 616. 2 See Snelling v. Boyd, 5 Monroe 172. Though the indorsement of a bill by one partner in his own name does not pass the legal title, yet as each partner has the complete jus disponendi thereof, the transfer passes the entire equitable right: Alabama Co. v. Brainard, 35 Alabama 476.

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)1

Neither indorsement nor acceptance(a) is complete before 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

(z) Vincent v. Horlock, 1 Camp. 442.

(a) Cox v. Troy, 5 B. & Ald. 474 (7 E. C. L. R.) ; 1 D. & Ry. 38; 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 (40 E. C. L. R.); Brind v. Hampshire, 1 M. & W. 369; Bayley on Bills, 6th ed. 137. By the French post rules a letter once posted may be recalled; to recall a letter is a revocation of the delivery of an indorsed bill contained in it, even if by mischance the letter proceed: Cote v. Deveze, L. R., 9 Chan. Ap. p. 27.

1 Where there are several blank indorsements, the holder may fill up the first one of them to himself, or may deduce his title through all of them: Cole v. Cushing, 8 Pick. 48; Emerson v. Cutts, 12 Mass. 78; Ellsworth v. Brewer, 11 Pick. 316. The holder of a note filled up a blank indorsement, directing payment to be made to a particular person, merely for the purpose of collection, and the agent returned the note with the protest for non-payment to such holder. Held that he might strike out the special indorsement, and make it payable to himself, so as to bring the action in his own name against the indorser: Bank of Utica v. Smith, 18 Johns. 230. The holder of a promissory note indorsed in blank may fill it up with any contract consistent with the character of an indorsement: Mitchell v. Culver, 7 Cowen 336; Riker v. Cosby, 2 Penn. 911; Kiersted v. Rogers, 6 Har. & Johns. 282; Ilungerford v. Thomson, Kirby 393; Rees v. Bank, 5 Rand. 326; Lovell v. Evertson, 11 Johns. 52; Hunter v. Hemstead, 1 Missouri 67; Moies v. Bird, 11 Mass. 436; Tenney v. Prince, 4 Pick. 385; Nevens v. Degrand, 15 Mass. 436; Leich v. Hill, 4 Watts, 448; Clawson v. Gustin, 2 South. 821; Dollfus v. Frosch, 1 Denio 267; Union Bank v. Carr, 2 Humph. 345; Hubbard v. Williamson, 4 Iredell 266; Hance v. Miller, 21 Illinois 636; Bean v. Briggs, 1 Clarke 488. A delivery by the indorser to the indorsee, or that which is equivalent to such delivery, is necessary: Dann v. Norris, 24 Conn. 333.

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)1

Thirdly, as to the liability of an indorser.

Every indorser of a bill is in the nature of a new drawer ;(f) 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

[*154] maturity pay the bill, he, the indorser, will, on receiving

due notice of the dishonor, 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)

(c) Lysaght v. Bryant, 9 C. B. 46 (67 E. C. L. R.).

(d) Marston v. Allen, 8 M. & W. 494; Adams v. Jones, 12 Ad. & El. 455 (40 E. C. L. R.); Lloyd v. Howard, 20 L. J., Q. B. 1; 15 Q. B. 995 (69 E. C. L. R.); see Robinson v. Little, 18 L. J., Q. B. 29; Green v. Steer, 1 Q. B. 707 (41 E. C. L. R.); Denton v. Peters, L. R., 5.Q. B. 475.

(e) Bell v. Lord Ingestre, 19 L. J., Q. B. 71; 12 Q. B. 317 (64 E. C. L. R.) ; and see Barber v. Richards, 6 Exch. 63; Lloyd v. Howard, 15 Q. B. 995 (69 E. C. L. R.).

(ƒ) Penny v. Innes, 1 C., M. & R. 441; 5 Tyrw. 107; see Allen v. Walker, 2 M. & W. 317; 5 Dowl. 460; 1 M. & W. 44; see ante, p. 149.

(g) Suse v. Pompe, 30 L. J., C. P. 75 ; 8 C. B., N. S. 538 (98 E. C. L. R.). In Horn v. Rouquette, L. R., 3 Q. B., Div. 519, L. J. Brett gives a more am

Where a note is transferable by indorsement only, the mental incapacity of the indorser will be a defence to the maker as against the indorsee: Peaslee v. Robins, 3 Metcalf 164. An erased blank indorsement of the names of the payees of a note is not evidence of a transfer: Williams v. Smith, 21 Missouri 429.

If a promissory note was never actually delivered, but was put in circulation by force or fraud and without the fault of the maker, no recovery can be had thereon even by an innocent holder: Burson v. Huntington, 21 Mich. 415. Want of delivery alone is, however, no defence against a bonâ fide holder: Kenyon v. Wahlford, 17 Minn. 239. A bill to the order of a person in existence must be indorsed by him though he has no interest. It cannot be treated as if drawn to the order of a fictitious payee: Rogers v. Ware, 2 Neb. 29.