But an acceptance, though made after sight of an endorsement, does not admit the ability or (4) signature of the endorser.

Nor does it admit the endorsement of the drawer where the bill is payable to the drawer's order. (5)

And if such bill imports to be drawn and endorsed by procuration, though the acceptance admits the procuration as to the drawing, it does not as to the endorsement. (5)

But upon a bill payable to the drawer's order, an acceptance admits the drawer's ability to endorse; for if he cannot endorse, he was not of ability to draw. (6)

(4) Smith v. Chester, 1 Term Rep. 654. In an action by the endorsee of a bill against the acceptor, the plaintiff was nonsuited because he could not prove the handwriting of the first endorser, though the endorsement was on the bill at the time of the acceptance. A motion was made to set aside the nonsuit on the ground that as the endorsement was on the bill when it was accepted the acceptance admitted it, but the court thought it did not, because the acceptor only looks to the handwriting of the drawer, and that he is afterwards precluded from disputing. Rule discharged.

Carvick v. Vickery, Dougl. 630-653. n. 134. ante, p. 40. note (16). A bill payable to the order of father and son, who were not partners, was endorsed by the son only, after which it was presented, and the drawee wrote upon it a direction to his banker to pay it. In an action against the drawee the question was, Whether the endorsement by the son alone was sufficient? and Willes J. inclined to think the order to the banker was a recognition of the endorsement. But Ashhurst and Buller, Js. thought not. However in Hankey v. Wilson, Say. 223. in an action by the endorsee of a bill against the acceptor, there was no actual proof of the handwriting of one of the endorsers, but it appearing that the endorsement was upon the bill when the defendant accepted it, and that he promised to pay it; Ryder, C. J. left the case to the jury, who found for the plaintiff, and upon a rule to shew cause why there should not be a new trial, the court thought it a question for the jury, Whether the acceptance and promise did not amount to an admission that the name of every endorser was authentic? and refused the rule.

(5) Robinson v. Yarrow, 7 Taunt. 455. Action by endorsee against acceptor on bill importing to be drawn by Henry, per procuration for Stachen and Co. payable to the order of Stachen and Co., and to be endorsed by Henry per procuration for Stachen and Co. Plaintiff proved the acceptance, but he did not prove Henry's signature to the endorsement, nor his authority to endorse, upon which Burrough J. directed a verdict for defendant; and on rule nisi for new trial, and cause shewn, the court held the acceptance admitted Henry's authority to draw, and his signature as drawer, but that it was no admission of his authority to endorse, or of his endorsement, for the drawing and endorsing would have contrary effects, the one would bring the amount to Stachen and Co., the latter would carry it from them; and rule dis· charged.

It precludes the acceptor therefore from relying upon infancy in such drawer and endorser. (6)

So if a bill is drawn in the name of a firm purporting to consist of several persons, the acceptance admits that there is such a firm. (7)

And that it consists of several. (7)

And the acceptor will be precluded from proving the contrary, if it is only to let in a technical objection. (7)

In an action, therefore, against the acceptor of a bill or maker of a note, the plaintiff must prove the defendant's signature, and the necessary endorsements; and in the former case, if the acceptance was made without sight of the bill, the signature of the drawer: in an action against the drawer of a bill, or the endorser of a bill or note, he must prove the defendant's signature, the necessary endorsements (8) between him and the plaintiff, the presentment, the non-acceptance or non-payment, the notice of dishonor (or the facts to shew such notice unnecessary), and, in the case of a foreign bill, the protest.

In an action indeed against the drawer (9) or acceptor of a bill, or the maker of a note, all the endorsements stated, though some may have been stated unnecessarily, must be proved; but against an (10) endorser, the defendant's en

(6) See Taylor v. Croker, ante, p. 34.

(7) Bass v. Clive, 4 Maule, 13. Endorsee against acceptor on bill purporting to be drawn by Ellis, Needham Jun., and Co., and payable "to our order." Plaintiff declared upon it as drawn by certain persons trading under the firm of Ellis, Needham jun., and Co., and payable to their own order; defendant proved at the trial that only one person constituted that firm, upon which Lord Ellenborough nonsuited, with liberty to plaintiff to move to enter a verdict. On a rule nisi inde and cause shewn, he and the rest of the court were clear that by the acceptance defendant had admitted conclusively that there was such a firm as that stated on the face of the bill, and was not at liberty to prove the contrary; and rule absolute. [See Williamson v. Johnson, ante, p. 278.]

(8) Vide Critchlow v. Parry, ante, p. 313. n. (3).

[See also Blakely v. Grant, 6 Mass. R. 386.]

(9) Waynam v. Bend, 1 Campb. N. P. C. 175. In an action against the maker of a promissory note payable to T. L. or bearer, the declaration averred an endorsement by T. L., and Lord Ellenborough held that the plaintiff, having stated such endorsement, though unnecessarily, was bound to prove it. See also Smith v. Chester, ante, p. 314. n. (4), and Bosanquet v. Anderson, 6 Esp N. P. C. 43.

(10) See Critchlow v. Parry, ante, p. 313. n. (3).

dorsement, and such endorsements only as are stated to have been made subsequently to his, need be proved.

If a bill, in consequence of having an acceptance upon it pointing out a particular house for payment, is presented there for payment, and not at the drawee's residence or personally to the drawee, such acceptance must in general be proved in an action against the drawer or an endorser; because otherwise the presentment at that particular house will not be a valid presentment. (11)

But if it can be shewn that such acceptance was upon the bill when the defendant passed it, proof of the acceptance will be unnecessary. (11)

Proof that it was upon the bill when the plaintiff took it, if he did not take it immediately from the defendant, will not be sufficient. (11)

Where plaintiffs have no title upon a bill or note, unless they constitute a particular firm, they must prove that they constitute that firm.

As if they sue upon a bill or note payable to that firm by its name of business, without specifying its members ; Or specially endorsed to it.

But though several persons join in suing as endorsees, yet if they claim under an endorsement in blank, they need not shew that they are partners, or that they have a joint interest. (12)

(11) Smith v. Bellamy, 2 Stark. 223. Second endorsee of bill against payee, on bill drawn on Stevenson, payable in London, with an acceptance thereon payable at Spooner and Atwood's. It had been presented there and there only; the acceptance was upon the bill when the plaintiff, took it, but there was no evidence that it was so when defendant endorsed it and passed it away: it was urged that the jury might presume it was on the bill when plaintiff took it; Lord Ellenborough thought not, and as proof of the acceptance was necessary to make the presentment valid, he nonsuited the plaintiff.

(12) Ord v. Portal, 3 Campb. 239. Three persons sued as endorsees on a bill; the endorsement to them was in blank: it was urged that it ought to be shewn that they were partners, or had a joint interest. Sed per Lord Ellenborough, It is not necessary; the endorsement in blank gives a joint right of action to as many as agree in suing. Verdict for plaintiff's.

Rordasnz v. Leach, 1 Stark. 446. Two persons sued as endorsees; the endorsement to them was in blank: and on question whether they

It is indeed stated to have been held, that if a bill endorsed in blank is sent to a particular house, and an action is afterwards brought thereon by some of the members of that house and additional parties, there must be some evidence that that house transferred the bill to the plaintiffs, or consented to their suing upon it. (13)

And this, though the bill was sent to the house for the benefit of the persons who sue. (13)

[The holder of a bill or note is prima facie the rightful owner, and need not prove a consideration, except where circumstances of suspicion appear. (a)

A bill or note importing on its face to be for " value received," is prima facie evidence of that fact, not only between the parties to the note, but against third persons, whenever the bill or note is admissible as evidence. (b)

But the presumption of value received arising from those words on the face of a bill, may be rebutted by circumstances; as if the payee should neglect entirely to present it for acceptance. (b)]

were bound to shew a joint title, Lord Ellenborough held they were

not.

[In an action by surviving partners as endorsees of a bill endorsed in blank, they declared in their own right, without describing themselves as surviving partners, though it appeared that when they received the bill there was another person in their firm, who died before the action was brought. It was held that the action was properly brought. Park J. said that in case of a special endorsement strict evidence must be given that the plaintiffs composed the firm to whom it is endorsed, but that "an endorsement in blank conveys a joint right of action to as many as agree to sue on the bill." Attwood v. Rattenbury, 6 Moore, 579.]

(13 Machell, Boucher, and Birkbeck v. Kinnear, 1 Stark. 499. Plaintiffs were trustees of the estate of Holder, an insolvent; two of them were partners in the house of Langton and Co.: defendant being indebted to Holder, sent a bill endorsed in blank to Langton and Co. on account of Holder's estate: the trustees sued thereon; but on an objection that Langton and Co. did not appear to have transferred the bill to the plaintiffs or to have sanctioned their suing thereon, Lord Ellenborough held that proof essential, and nonsuited the plaintiffs.

[(a) Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, 3 Johns. Cas. 259. See also Dugan v. The United States, ante, p. 212. In a case in Pennsylvania in 1792 in an action by the drawers who were also payees and endorsers of a bill, against the acceptor, it was held that the production of the bill and protest was not sufficient evidence to prove that the plaintiffs had paid the amount to the endorsee, and judgment was given for the defendant. Gorgerat v. M'Carty, 1 Yeates, 94. S. C. 2 Dall. 144.]

[(b) Mandeville v. Welch, 5 Wheat. R. 277.]

And in many cases the plaintiff is compellable to prove that either he or some preceding party took the bill or note bonâ fide, and for value.

As in case of a bill or note originally given without consideration, and whilst the person giving it was under duress. (14)

Or in case of a bill or note obtained by fraud. (15)

Or in case of a transfer by delivery by a person not entitled to make it. (16)

As in the instance of bills or notes which have been stolen or lost. (16)

(14) Duncan v. Scott, 1 Campb. N. P. C. 100. Endorsee against the drawer of a bill. It appeared that the defendant gave the bill while under duress abroad, and under a threat of personal violence and confiscation of his property, and that it was given without consideration. Lord Ellenborough held that the defendant not having been a free agent when he drew the bill, it was incumbent on the plaintiff to give some evidence of consideration; and no such evidence being given, the plaintiff was nonsuited.

(15) Rees v. Marquis of Headfort, 2 Campb. N. P. C. 574. In an action by an endorsee of a bill against the acceptor, it appeared that the drawer had received no consideration for the bill, and had been tricked out of it by a gross fraud; and Lord Ellenborough held that this made it incumbent on the plaintiff to shew what consideration he gave for the bill; and the plaintiff not being prepared to do so, was nonsuited.

[In an action against the endorser of a note, he gave notice to the plaintiff before the trial that evidence would be required of him of the consideration paid by him, and of the circumstances under which the note came into his hands. At the trial the defendant offered to prove that the note was fraudulently put into circulation by the maker. The court refused to admit the evidence; or to make the plaintiff prove the manner in which he became possessed of the note. On Error, Tilghman C. J. "The defendant was not permitted to make out a case which would have entitled him to a verdict, unless the plaintiff had come forward and cleared himself of suspicion. I am of opinion that the District Court erred in rejecting the evidence." Judgment reversed. Holme v. Karsper, 5 Bin. 469. See also Garriges v. Vogdes, 2 Browne's R. 262; and Coster v. Merest, 7 Moore, 87.]

(16) Vide Anon. ante, p. 72. and Miller v. Race, Grant v. Vaughan, ante, p. 73. n. (21). Peacock v. Rhodes, ante, p. 67. n. (9.)

Solomons v. the Bank of England, 13 East's Rep. 135. n. Trover for a bank note for 500l. It appeared that the note had been fraudulently obtained by means of a forged draught, and therefore when presented for payment it was stopped by the bank, who informed the plaintiff of the circumstances. The plaintiff had received it from his correspondents at Middleburgh, and by desire of the bank, wrote to learn how they came by it. In answer, they wrote that they had received it in payment for goods, from a stranger. The note was three years old, and