If the bill is put into an agent's hands to pay away, and it is left in doubt whether the date was altered before he paid it away or afterwards, it will not be sufficient. (16) ber, 1816, but the date was altered to 29th January, 1817, and the alteration, which was immediately above the acceptance, was proved to be in defendant's handwriting. Abbot J. intimated, that he must have proof that the alteration was made before the drawer endorsed away the bill, for otherwise a new stamp would have been necessary. was then given that the bill was in the drawer's hands after defendant had accepted it, and that was considered primâ facie proof that it had not been previously negotiated. Proof (16) In Downes v. Richardson, ante p. 63. it was at first left in doubt when the date was altered, whether before or after the payment to Howell, and then the court inclined against the plaintiff; it was afterwards ascertained that the alteration was before that payment. CHAP. V. Transfer of Bills or Notes. BILLS or notes payable to order, or to bearer, or containing any words to make them assignable, may be assigned so as to give the assignee a right upon the bill or note against all the antecedent parties; and bills or notes containing no words to make them assignable may, where the stamp laws do not prevent it, be assigned so as to give the assignee a right upon them against the assignor, but (1) not so as to give him a right against any of the antecedent parties. [But a bill or note payable to order, may be transferred by the payee by delivery only, so far as to enable the assignee to maintain an action upon it in the name of the original payee. But the defendant in such case may set off any payment or other demands against the payee, which he had previous to notice of the assignment, but none subsequent. (a)] Bills and notes are assigned either by delivery only, or by (1) Hill v. Lewis, Salk. 132. Moore drew one note payable to the defendant, or his order, and another payable to him generally, without any words to make it assignable; the defendant endorsed them to Zouch, and Zouch to the plaintiff; the first objection was that the plaintiff had been guilty of laches, but the jury thought he had not: and it was then urged that the second note was not assignable; and Holt, C. J. agreed that the endorsement of this note did not make him that drew it chargeable to the endorsee, for the words "or to his order" give authority to assign it by endorsement; but the endorsement of a note which has not these words is good so as to make the endorser chargea ble to the endorsee. [Ames endorsed a note payable to himself, but not to his order, to secure a debt due from the maker to Josselyn, to whom it was given. Josselyn wrote a guaranty over Ames' name, and sued him as guarantor. No demand or notice was proved. The court held the action not maintainable, because the payee could not "himself warrant to a third person payment of a note payable to himself." But the court said that the plaintiff might cancel what he had written, and instead thereof write, "For value received I undertake to pay the money mentioned to E. J.” and upon this endorsement might maintain an action. Josselyn v. Ames, 3 Mass. R. 274.] [(a) Jones v. Witter, 13 Mass. R. 305. Parker C. J. said "There is no sensible ground upon which a writing shall be held necessary to prove an assignment of a contract, which assignment has been executed by delivery, any more than an assignment of a personal chattel." ]; endorsement and delivery. Bills and notes whilst payable to order are assignable by the latter mode only; bills and notes payable to bearer, and bills and notes originally payable to order, and endorsed, as (2) they may be, so as to be payable to the bearer, by either. On a transfer by delivery only, without endorsement, the person making it ceases to (3) be a party to the bill or note; on a transfer by endorsement, he (4) is, according to the legal operation, a new drawer. No particular (5) words are essential to an endorsemeut; the mere signature (6) of the endorser is in general sufficient. A promise to endorse, though on sufficient consideration cannot be treated as an actual endorsement. (7) Nor will it preclude the party from proving that an endorsement afterwards in his name is a forgery. (7) But delivery without endorsement, where endorsement is essential, and where it is omitted by mistake, will entitle the party to call for an endorsement afterwards; (8) (2) See post, p. 67. [See also Brush v. Reeves, 3 Johns. R. 435.] (3) Vide Ld. Raym. 442. 774. 929, 930. 12 Mod. 203. 241. 408. 517. Salk. 124. 128.-3 Salk. 68. Comb. 57. 521. (4) Smallwood v. Vernon, Str. 478. In an action against the endorser of a note, the declaration stated that he became chargeable according to the tenor of the endorsement: and it was objected that the endorsement might appoint the payment at a time different from that mentioned in the note; sed per cur. if it did, it would charge the endorser, for every endorsement is the same as making a new note. Vide 2 Show. 501. Comb. 32. Skinn. 255, 256. 342. 411. 3 Mod. 87. 12 Mod. 36. Ld. Raym. 181. 444. 744. Salk. 125. 132, 133. 3 Salk. 68. Str. 442. 479. 1 Atk. 282. 2 Atk. 182. Burr. 670. 675. Dougl. 613. (5) Vide Holt. 117. Ld. Raym. 176. 810. (6) Vide 12 Mod. 192. 244. Salk. 126. 128. 130. Ld. Raym. 444. (7) Moxon v. Pulling, 4 Camp. 50. Defendant had accepted a bill, he could not pay, and referred the holder to one May, to whom he said he had lent the acceptance. May proposed that plaintiff should take an acceptance of Hullett and Co., and that defendant should endorse it: defendant agreed, and said he would go and endorse it. Four days afterwards May sent plaintiff Hullett and Co.'s acceptance, with an endorsement in defendant's name; and plaintiff gave up defendant's acceptance: the endorsement in defendant's name was a forgery, and defendant being sued as endorser, Lord Ellenborough said, "You cannot establish any agency to endorse when the promise was given, the bill does not appear to have existed, and all was in fieri; defendant might repent and refuse to endorse; he may be liable for breach of promise, but cannot be sued as endorser. Nonsuit. And if the party who ought to have made it afterwards become bankrupt, will prevent his assignees from claiming the bill or note. (8) An endorsement which mentions the name of the person in whose favour it is made, is called a full endorsement; an endorsement which does not, a blank one. A blank endorsement, so long as it continues blank, makes a bill or note payable to the (9) bearer, but the holder may write over it what he pleases. (a) [So where a bill or note is endorsed in blank, and passed to a partnership, it may be filled out to one partner and he may sue upon it in his own name. (b)] And the holder, by writing a direction over the endorsement, ordering the money to be paid to particular persons without adding his own name, does (10) not become an endorser. (8) See Smith v. Pickering, post. (9 Peacock v. Rhodes, Dougl. 611-633. A bill was drawn by the defendant, payable to Ingham or order. Ingham endorsed it in blank, after which it was stolen; the plaintiff took it bonâ fide, and paid a valuable consideration for it, and acceptance and payment being refused, gave notice to the defendant, and brought this action. A case was reserved for the opinion of the court, and it was contended that this bill was not to be considered as payable to bearer, and that the plaintiff had no better right upon it than the person of whom he took it; but the court said there was no difference between a note endorsed in blank, and one payable to bearer, and the plaintiff had judgment. Francis v. Mott, N. P. before Lord Mansfield, cited Dougl. 612. was a similar case, and the attorney-general, who was for the defendant, after attempting unsuccessfully to show that the plaintiff knew the bill was obtained unfairly, gave up the cause. [(a) Williams v. Matthews, 3 Cowen, 252; and Lovell v. Evertson, infra. ] The endorsement [(b) Lovell sued Evertson as endorser of a note. was in blank and filled up at the trial in the C. Pleas, payable to the plaintiff. It was proved at the trial that the note was endorsed and delivered for the benefit of Thomas Lovell and Co. and the plaintiff was nonsuited. On Error, Per Curiam. "The note being endorsed in blank, the owner had a right to fill it up with what name he pleased, and the person whose name is so inserted, will be deemed on record as the legal owner, and if not so in fact, he could sue as trustee for the persons having the real interest. But the defendant could have no concern with that question. He was responsible to the person whose name was so inserted in the blank endorsement." Judgment reversed. Lovell v. Evertson, 11 Johns. R. 52. ] (10) Vincent and another v. Horlock and another, 1 Campb. N. P. C. In an action against the defendants as endorsers of a bill, it ap 442. As long however as the first endorsement continues blank, the (11) bill or note as against the payee, the drawer, and acceptor, is assignable by mere delivery, notwithstanding it may have upon it subsequent full endorsements. [And the holder may strike out the subsequent full endorsements, and make himself the immediate endorsee of the first endorser. (a)] A full endorsement may restrain the negotiability of a bill or note. (b) [The holder of a note endorsed in blank, who has written. an endorsement over the name of the endorser, making the note payable to an agent, to whom it is transmitted, to obtain payment; may strike out the endorsement when the note is returned to him. (c) ] peared that the payee had endorsed it in blank to the defendants, and that they had written over the payee's signature, "Pay the contents to Vincent and Co." Lord Ellenborough was clearly of opinion that this was not an endorsement by the defendants; and the plaintiffs were nonsuited. (11) Smith v. Clark, Peake, 225. A bill was endorsed in blank by the payee, and after some other endorsements was endorsed to Jackson or order; Jackson sent it to Muir and Atkinson, but did not endorse it, and Muir and Atkinson discounted it with the plaintiffs: the plaintiff struck out all the endorsements except the first, which continued blank. This was an action against the acceptor, and it was objected, that the plaintiffs could not recover without an endorsement by Jackson; but Ld. Kenyon held otherwise, and the plaintiffs recovered. The plaintiffs afterwards proved that Jackson desired Muir and Atkinson to discount this bill, but Ld. Kenyon thought the plaintiff's case made out without this evidence. [(a) See Smith v. Clark supra; Thompson v. Robertson, 4 Johns. R. 27; and Ritchie v. Moore, 5 Munf. 388. Morris v. Foreman, 1 Dall. 103.] [(b) Where a note is endorsed to A or order, the property of the note is passed to A, and nothing but cancelling this endorsement, or A's endorsing the note, would divest him of the legal title; not even an assignment by him under hand and seal, Burdick v. Green, 15 Johns. R. 247.] [(c) Spencer C. J. delivered the opinion of the Court. "The defend ant is sued as first endorser of a note. Over the name of Peter Smith (the defendant) there was written when the note was presented for payment, pay to the order of W. Fish, Esq. Cashier. &c.' This endorsement was thus filled for the safety of transmission, by the plaintiffs' direction, who were owners of the note. The endorsement was afterwards erased, and the note directed to be paid to the plaintiffs. Fish never had any interest in the note. It was sent to him merely to collect, and not being paid, he sent it back. He was the mere servant or agent of the plaintiffs; and it is, I think, clearly settled, that in such a case the plaintiffs had a right to strike out the transfer and make the note payable to themselves." Bank of Utica v. Smith, 18 Johns. R. 230.1 |