be dead, the bill may be presented to his executor or administrator. (e) 5. Of the Indorsement. -A valid transfer may be made by the payee, or his agent, and the indorsement is an implied contract that the indorser has a good title, and that the antecedent names are genuine, that the bill or note shall be duly honored or paid, and if not, that he will, on due protest and notice, take it up. (f) (e) Molloy, b. 2, c. 10, sec. 84; Bayley on Bills, 128. (ƒ) Ogden v. Saunders, 12 Wheat. 213, 341; Pardessus, Droit Com. 2, art. 847; Story on Prom. Notes, 145. 2 Vendor's Liability. — As to the text see Turnbull v. Bowyer, 40 N. Y. 456. The indorser also guarantees the competency of the makers to contract. Erwin v. Downs, 15 N. Y. 575; ante, 85, n. 1. When a bill is merely sold by one who is not a party to it, and who gives no warranty, and who therefore is not responsible for the quality of the bill or the solvency of the parties, the price may still be recov ered back on the ground of failure of consideration or as money paid under a mistake of fact, if the bill turns out to be different in kind from the thing described in the agreement, as when that which is sold as a foreign bill turns out not to be one, or when the acceptance is forged. See note on sales, ante, ii.; Gompertz v. Bartlett, 2 El. & Bl. 849; Gurney v. Womersley, 4 El. & Bl. 133; Merriam v. Wolcott, 3 Allen, 258, overruling Ellis v. Wild, sup., 86, n. (b); Thompson v. McCullough, 31 Mo. 224; Parlange v. Faurès, 14 La. An. 444; Terry v. Bissell, 26 Conn. 23; Aldrich v. Jackson, 5 R. I. 218; Dumont v. Williamson, 18 Ohio St. 515; Swanzey v. Parker, 50 Penn. St. 441. But see Hinckley v. Kersting, 21 Ill. 247. Similar principles would apply, it is supposed when the bill is received in payment. Bell v. Cafferty, 21 Ind. 411. See, as to bank-notes, Baker v. Bonesteel, 2 Hilton, 397; sup., 86, n. (b). And it has been doubted whether a person receiving payment in forged bank-notes is bound to return them before he can maintain an action on his original demand. Burrill v. Watertown Bank & L. Co., 51 Barb. 105. But see Kenny v. First Nat. Bank of Albany, 50 Barb. 112; Simms v. Clark, 11 Ill. 137; Magee v. Carmack, 13 Ill. 289; and, generally, Pooley v. Brown, 11 C. B. N. s. 566; post, 105, n. 1. In this connection it should be mentioned that the doctrine of Bayard v. Shunk, sup., 86, n. (b), as to the notes of an insolvent bank sold or received in payment, is disapproved by some later cases. Westfall v. Braley, 10 Ohio St. 188; Townsends v. Bank of Racine, 7 Wis. 185; Magee v. Carmack, 13 Ill. 289. See Timmins v. Gibbins, 18 Q. B. 722; Turner v. Stones, 1 Dowl. & L. 122; post, 105, n. 1. But it seems to be the general rule in England, and a distinction is taken between bank-notes and ordinary notes and bills Lichfield Union v. Greene, 1 Hurlst. & N. 884; Byles on B., 10th ed. 159; Smith v. Mercer, L. R. 3 Ex. 51; Woodland v. Fear, 7 El. & Bl. 519, 520; Bicknall v. Waterman, 5 R. I. 43, 51; Ware v. Street, 2 Head, 609. See Renton v. Marryott, 6 C. E. Green (21 N. J. Eq.), 123. It might be otherwise if the party making the transfer knew that the maker of the instrument was insolvent, for it has been said that he warrants that he has no knowledge of any facts which prove the paper to be worthless, on account of the failure of the makers, or by its being already paid, or otherwise to have become void or defunct. 1 H. & N. 890; Brown In the case of a bill made or indorsed to a feme covert or to a feme sole, who afterwards marries, the right to indorse it belongs to the husband. So, the assignee of an insolvent payee, or the executor or administrator of a deceased payee, are entitled to indorse the paper. (g) And if a bill be made payable to a mercantile * house consisting of several partners, an indorsement by *89 any one of the partners is deemed the act of the firm. If the bill be made payable to A, for the use of B, the legal title is in A, and he must indorse it. So an infant payee or indorsee may, by his indorsement, transfer the interest in the bill to any subsequent holder, against all the parties to the bill except himself; and if a third person other than the payee guarantees, by indorsement, previous to delivery to the payee, the payment of the note, he is held to be an indorser, under the New York statute. (a)1 (g) Parker, C. J., in 1 P. Wms. 255; Conner v. Martin, cited in 3 Wils. 5; Raw linson v. Stone, ib. 1. In Harper v. Butler, 2 Peters, 239, it was admitted, that an indorsement of a negotiable note by the executor of the payee, and good in the state where he was appointed and indorsed it, will enable the indorsee to sue in his own name in any other state. But a contrary doctrine was held in Stearns v. Burnham, 5 Greenl. 261, and Thompson v. Wilson, 2 N. H. 291. These last decisions are questioned in the case of Rand v. Hubbard, 4 Met. 259, and the doctrine in the other cases sustained; and I think the better opinion to be, that if the holder of the note dies before the note becomes due, his executor or his administrator, if one be appointed, may make the demand, and give notice so as to fix the prior parties [Malbon v. Southard, 36 Maine, 147; Dwight v. Newell, 15 Ill. 333.] (a) Prosser v. Luqueer, 4 Hill, 420. An indorsement by the cashier of a bank for the bank passes the title. Story on Promissory Notes, p. 132. v. Montgomery, 20 N. Y. 287; Delaware Bank v. Jarvis, ib. 226; Byrd v. Hall, 2 Keyes, 646, 647. But the contrary is held in Bartle v. Saunders, 2 Grant (Penn.), 199. 1 Indorsement before Delivery. In some states a stranger indorsing a note before delivery to the payee is prima facie liable as an original promisor. Sylvester v. Downer, 20 Vt. 355; Schneider v. Schiff man, 20 Mo. 571; Childs v. Wyman, 44 Me. 433; Perkins v. Barstow, 6 R. I. 505; Currier v. Fellows, 7 Fost. (27 N. H.) 366; Carpenter v. Oaks, 10 Rich. 17; Wetherwax v. Paine, 2 Mich. 555; Cecil v. Mix, 6 Ind. 478; Carr v. Rowland, 14 Texas, 275; Peckham v. Gilman, 7 Minn. 446; Collins v. Trist, 20 La. An. 348. See Rey v. Simpson, 22 How. 341, 350; Vore v. Hurst, 13 Ind. 551, 556; Orrick v. Colston, 7 Gratt. 189, 199. In Massachusetts, and perhaps in some of the above states, the rule is even stricter. Essex Co. v. Edmands, 12 Gray, 273; Brown v. Butler, 99 Mass. 179; Wright v. Morse, 9 Gray, 337. Compare Patch v. Washburn, 16 Gray, 82. In other states he is prima facie a guarantor. Camden v. McKoy, 3 Scammon, 437; Webster v. Cobb, 17 Ill. 459; Blatchford v. Milliken, 35 Ill. 434; Ranson v. Sherwood, 26 Conn. 437; Riddle v. Stevens, 32 Conn. 378; Rhodes v. Seymour, 36 Conn. 1; Seymour v. Leyman, 10 Ohio St. 283, 286; Greenough v. Smead, 3 Ohio St. 415. See Orrick v. Colston, 7 Gratt. 189, 199. In other states he is held to be only an The bill cannot be indorsed for a part only of its contents, unless the residue has been extinguished; for a personal contract cannot be apportioned, and the acceptor made liable to separate actions by different persons. Blank indorsements are common, and they may be filled up at any time by the holder, even down to the moment of trial in a suit to be brought by him as indorsee; but no other use can be made of a blank indorsement in filling it up than to point out the person to whom the bill or note is to be paid. A note indorsed in blank is like one payable to bearer, and passes by delivery; and the holder may constitute himself, or any other person, assignee of the bill. The courts never inquire whether he sues for himself, or as trustee for some other person. (b) Even a bond made payable to bearer has been held to pass by delivery, in the same manner as a bank-note payable to bearer, or a bill of exchange indorsed in blank. (c)2 The holder may strike out the indorse (b) Peacock v. Rhodes, Doug. 633; Francis v. Mott, cited in ib. 634; Bull. N. P. 275; Livingston v. Clinton, and Cooper v. Kerr, cited in 3 Johns. Cas. 264; Lovell v. Evertson, 11 Johns. 52; Duncan, J., in 13 Serg. & R. 315; Kiersted v. Rogers, 6 Harr. & J. 283; Evans v. Gee, 11 Peters, 80. In Sprigg v. Cuny, 19 Mart. (La.) 253, it was held, that the holder of a negotiable note, indorsed in blank, might sue on it, without filling it up to himself. Under the French law, an indorsement in blank, of a promissory note, is not valid. Code de Comm. art. 137, 138. The law is the same in Germany. Heinec. de Camb. c. 2, secs. 10, 11. Nor can the holder of a bill drawn and indorsed in France, in blank, recover against the acceptor in the English courts, for such an indorsement was not a valid contract by the lex loci contractus. Trimbey v. Vignier, 1 Bing. N. C. 151. [But see 95, n. 1.] (c) Gorgier v. Mieville, 3 B. & C. 45 indorser. Spies v. Gilmore, 1 Comst. 821; Ellis v. Brown, 6 Barb. 282; Waterbury v. Sinclair, 26 Barb. 455; Cottrell v. Conklin, 4 Duer, 45; Slack v. Kirk, 67 Penn. St. 380, and cases cited; Clouston v. Barbiere, 4 Sneed, 336; Fear v. Dunlap, 1 Greene (Iowa), 331; Pierce v. Kennedy, 5 Cal. 138; Jones v. Goodwin, 39 Cal. 493; Jennings v. Thomas, 13 Smedes & M. 617. See Vore v. Hurst, 13 Ind. 551, 557. But in most jurisdictions except New York and Massachusetts parol evidence is admissible to show that some other contract was intended. See, further, infra, n. (k), and especially Rey v. Simpson, 22 How. 341, 350. 2 Negotiable Bonds. The American cases generally treat such bonds as negotiable. Mercer County v. Hacket, 1 Wall. 83, 95; Gelpcke v. Dubuque, ib. 175, 206; Murray v. Lardner, 2 Wall. 110; Smith v. Sac County, 11 Wall. 139; Texas v. White, 7 Wall. 700, 735; Craig v. Vicksburg, 31 Miss. 216; Morris Canal & B. Co. v. Fisher, 1 Stockt. 667; Ide v. Passumpsic & Conn. R. R.R., 32 Vt. 297; Mechanics' Bank v. N. Y. & N. H. R.R., 3 Kern. (13 N. Y.) 599, 625; Connecticut Mut. L Ins. Co. v. Cleveland, C. & C. R.R., 41 Barb. 9, 22; Clark v. DesMoines, 19 Iowa, 199, 213; Porter v. McCollum, 15 Ga. 528. But see Helfer v. Alden, 3 ment to him, though full, and all prior indorsements in blank, except the first, and charge the payee or maker. (d) When the indorser takes up the note, he becomes the holder as entirely as though he had never parted with it. (e) There is no necessity (d) Dollfus v. Frosch, 1 Denio, 367. (e) Smith v. Clarke, Peake, 225; United States v. Barker, 1 Paine, 156; M'Donald v. Magruder, 3 Peters, 474; Conant v. Wills, 1 McLean, 427; Leidy v. Tammany, 9 Watts, 259. Minn. 332. So even a bond with a blank for the name of the payee. White v. Vt. & Mass. R.R., 21 How. 575; infra, n. (c); Chapin v. Vt. & Mass. R.R., 8 Gray, 575. The coupons annexed to them, also, may be detached and negotiated separately, like other negotiable instruments payable to bearer, and the holder may recover upon them without producing the bonds. National Exch. Bank v. Hartford, Pr. & F. R.R., 8 R. I. 375; Spooner v. Holmes, 102 Mass. 503, 507; Beaver County v. Armstrong, 44 Penn. St. 63; Thomson v. Lee Cy., 3 Wall. 327, 332; Knox Cy. Commissioners v. Aspinwall, 21 How. 539; Arents v. Commonwealth, 18 Gratt. 750, 767; San Antonio v. Lane, 32 Texas, 405. When, as is usually the case, the bond also contains a promise to pay interest, and the coupons refer to the bond, the coupons have been treated as a mere repetition of the contract contained in the bond, for the convenience of the holder, so far as to hold that a suit upon them is not barred by the statute of limitations until one upon the undertaking in the bond would be also. City v. Lamson, 9 Wall. 477. On the other hand, interest on them after demand and refusal to pay has been allowed by the supreme courts of the United States and of some of the states; Aurora City v. West, 7 Wall. 82; North Penn. R.R. v. Adams, 54 Penn. St. 94; Mills v. Jefferson, 20 Wis. 50; San Antonio v. Lane, 32 Tex. 405; and they are treated as overdue the day after they become payable, in Arents e. Commonwealth, sup.; Union Bank of La. v. New Orleans, 5 Am. Law Reg. 8.555. And if the coupon is a mere repetition of the promise to pay interest in the bond, and if the latter contract can be sued on apart from the obligation for the principal sum, this would be right. See Robbins v. Cheek, 32 Ind. 328. The modern English cases in chancery hold that such bonds are either promissory notes or else analogous to the letter of credit, ante, 84, n. (c), an offer to all the world; and quacunque via, not subject to the equities between the original parties. In re Imperial Land Co. of Marseilles, Ex parte Colborne & Strawbridge, L. R. 11 Eq. 478, 491; In re Blakely Ordnance Co., Ex parte New Zealand Banking Co., L. R. 3 Ch. 154; In re General Estates Co., Ex parte City Bank, ib. 758; (explaining In re Natal Investment Co., Claim of Financial Co., ib. 355.) A guaranty is held to be assignable in equity on similar grounds in Arents v. Commonwealth, 18 Gratt. 750, 769. The liability of a corporation for allowing stock to be transferred to other parties while the certificates are outstanding in the hands of bona fide holders, has been put on somewhat similar ground. There is an offer to all the world on the face of the certificate, and under the seal of the company, that whoever in good faith will buy the stock and produce to the cor poration the certificates, regularly as signed, with power to transfer the stock on the books of the corporation, shall be entitled to have the stock transferred to him. Bank v. Lanier, 11 Wall. 369, 378; citing Bridgeport Bank v. New York & N. H. R.R., 30 Conn. 270; Bridgeport Bank v. Schuyler, 34 N. Y. 30. for any negotiable words in the indorsement. An indorsement to A. B., without adding " or order," is a good general indorsement. (f) But to give effect to an indorsement, there must be delivery. (g) A bill originally negotiable continues so in the hands of the indorsee, unless the general negotiability be restrained *90 by a special indorsement * by the payee. He may stop its negotiability by a special indorsement, but no subsequent indorsee can restrain the negotiable quality of the bill. (a) The first indorser is liable to every subsequent bona fide holder, even though the bill or note be forged or fraudulently circulated. (b) If a blank note or check be indorsed, it will bind the indorser to any sum, or time of payment, which the person to whom he intrusts the paper chooses to insert in it. (c)1 This only applies (f) Bayley on Bills, 128; Story on Promissory Notes, 150. (9) Marston v. Allen, 8 M. & W. 494. [Lloyd v. Howard, 15 Q. B. 995; Denton v. Peters, L. R. 5 Q. B. 475; Dann v. Norris, 24 Conn. 333; Kirkpatrick v. Wolfe, 17 Ark. 96.] (a) Edie v. East India Company, 2 Burr. 1216; Ancher v. The Bank of England, Doug. 637, Smith v. Clarke, 1 Esp. 180; [Walker v. Macdonald, 2 Exch. 527; Mitchell v. Fuller, 15 Penn. St. 268; Savannah Nat. Bank v. Haskins, 101 Mass. 370, 377;] Story on Promissory Notes, p. 136, n. 2. Restrictive indorsements are also allowed in France and Germany. Pothier, de Change, n. 23, 42, 89; Heineccius, de Camb. c. 2, sec. 10. (b) Lambert v. Pack, 1 Salk. 127; Putnam v. Sullivan, 4 Mass. 45; Codwise v. Gleason, 3 Day, 12; Herbert v. Huie, 1 Ala. 18. Where several successive indorsees have advanced money on the draft, the first indorsement being a forgery, each may recover from his immediate indorser. Canal Bank v. Bank of Albany, 1 Hill (N. Y.), 287. The indorsement of a bill implies an undertaking, that all the antecedent parties upon the bill are persons competent to draw and indorse the same, and that the indorser has, in virtue thereof, a good title to the bill, and to convey the same by indorsement. Story on Bills, [§§ 108, 110.] An indorser of a promissory note does not stand in the situation of a maker of it, whether he be the payee, or indorsee, or a third person. But Mr. Justice Story considers him to stand in the same situation as the drawer or indorser of a bill, and a collateral liability is created. Story on Promissory Notes, 134, 135. (c) Russel v. Langstaffe, Doug. 514; Violett v. Patton, 5 Cranch, 142; Johnson v. Blasdale, 1 Smedes & M. 1. The doctrine in several cases now is, that a deed executed in blank, with parol authority to a third person to fill it up afterwards, will be binding. Texira v. Evans, cited by Wilson, J., in 1 Anst. 229; Wiley v. Moor, 17 Serg. & R. 1 Fullerton v. Sturges, 4 Ohio St. 529; Holland v. Hatch, 15 Ohio St. 464; Or. rick v. Colston, 7 Gratt. 189; Michigan Ins. Co. v. Leavenworth, 30 Vt. 11; Spitler v. James, 32 Ind. 202; (compare Luellen v. Hare, ib. 211;) Michigan Bank v. Eldred, 9 Wall. 544; Smith v. Wyckoff, 3 Sandf. Ch. 77; Torrey v. Fisk, 10 Smedes & M. 590; Ex parte Bartlett, 3 De G. & J. 378; Montague v. Perkins, 22 L. J. N. s. C. P. 187; 22 Eng. L. & Eq. 516. But see Awde v. Dixon, 6 Exch. 869; ante, 79, n. 1. See as to n. (c), 89, n. 2 |