Same, Indorser, when liable to payee. of the same as the holder paid therefor, with interest, unless exonerated under the provisions of Secs. 3189, ' 3248, or 3255. NOTE.-Subd. 1.—McGregor vs. Rhodes, 6 El. & Bl., p. 266. Subd. 2.-Story on Notes, Sec. 135; see Mills vs. Barney, 22 Cal., p. 240. Subd. 3.-Erwin vs. Downs, 15 N. Y., p. 575; Troy City Bank vs. Lauman, 19 id., p. 477; Mills vs. Barney, 22 Cal., p. 240. Subd. 4.-"If the instrument is dishonored." One who indorses an instrument, even after it is due, is not bound to pay it without a presentment to the principal debtor.-St. John vs. Roberts, 6 Bosw., p. 593. An indorser is bound to pay at once, after presentment, even where acceptance of a bill, payable at a certain time after date, is refused.-Walker vs. Bank of State of N. Y., 9 N. Y., p. 582. "The indorser will, upon notice thereof duly given to him." It is not a condition of an indorser's engagement that notice shall be given for his benefit to prior indorsers.-Baker vs. Morris, 25 Barb., p. 138. But he is discharged, if due notice is not given to him.-Bryden vs. Bryden, 11 Johns., p. 187; see, also, Goldman vs. Davis, 23 Cal., p. 256; Keyes vs. Fenstermaker, 24 Cal., p. 329; Vance vs. Collins, 6 Cal., p. 435. "Pay so much of the same."Suse vs. Pompe, 8 C. B. (N. S.), p. 538. “As the holder paid therefor, with interest." It has often been held that the indorsee, in an action against the indorser, can only recover the consideration which he has actually paid.-Coye vs. Palmer, 16 Cal., p. 158; Cook vs. Cockrill, 1 Stew., p. 475; Brown vs. Moot, 7 Johns., p. 860; Youse vs. McCreary, 2 Blackf., p. 243; Cook vs. Clark, 4 E. D. Smith, p. 213; Cram vs. Hendricks, 7 Wend., pp. 569, 642; Braman vs. Hess, 13 Johns., p. 52; see Ingalls vs. Lee, 9 Barb., p. 651. 3117. One who indorses a negotiable instrument before it is delivered to the payee, is liable to the payee thereon, as an indorser. NOTE. This is the substance of the decision in Moore vs. Cross, 19 N. Y., p. 227. But previous cases have so complicated the question that it is necessary to clear up the confusion by a positive rule. It has long been maintained that an indorser, before delivery to the payee, does not mean to be responsible to him, and though this doctrine is now overruled, yet the ment recourse. 3118. An indorser may qualify his indorsement Indorsewith the words, "without recourse," or equivalent without words; and upon such indorsement, he is responsible only to the same extent as in the case of a transfer without indorsement. NOTE.-Story on Notes, Sec. 146; Rice vs. Stearns, 3 Mass., p. 225; Upham vs. Prince, 12 id., p. 14; 3119. Except as otherwise prescribed by the last Same. section, an indorsement, without recourse, has the same effect as any other indorsement. NOTE.-Epler vs. Funk, 8 Penn. St., p. 468. privy to 3120. An indorsee of a negotiable instrument has Indorsee the same rights against every prior party thereto that contract. he would have had if the contract had been made directly between them in the first instance. NOTE.-See Griswold vs. Haven, 25 N. Y., p. 595; Polhill vs. Walter, 3 B. & Ad., p. 114. This principle is one of great importance, particularly with reference to representations contained in commercial paper, which are deemed to be made directly to every indorsee. accommo indorser. 3121. One who indorses a negotiable instrument, Rights of at the request and for the accommodation of another dation party to the instrument, has all the rights of a surety, as defined by the Chapter on Suretyship, and is exonerated in like manner in respect to every one having notice of the facts, except that he is not entitled to contribution from subsequent indorsers. NOTE. Since a surety has all the rights of a guarantor, so an indorser for accommodation has the rights of a guarantor, as defined by the Chapter on Guaranty in General, and is exonerated from liability in like manner. Thus, an extension of time granted to the principal debtor discharges an indorser (Platt vs. Stark, 2 Hilt., p. 399; Kelty vs. Jenkins, 1 id., p. 73; Wood vs. Jefferson Co. Bank, Effect of want of tion. 3122. 9 Cow., p. 194; Hubbly vs. Brown, 16 Johns., p. 70; Myers vs. Welles, 5 Hill, p. 463; Dundas vs. Sterling, 5 Penn. St., p. 73; Sargent vs. Mason, 6 Mass., p. 85; Moss vs. Hall, 5 Exch., p. 46), and a release of an indorser discharges subsequent indorsers.-Newcomb vs. Raynor, 21 Wend., p. 108. An indorser in the ordinary course of business has not the rights of a surety (Pitts vs. Congdon, 2 N. Y., p. 352; Hurd vs. Little, 12 Mass., p. 503; see Pring vs. Clarkson, 1 B. & C., p. 14), but an indorser at request and for the accommodation of another, has all the rights of a surety, and is exonerated in like manner to every one having notice of the facts.-Rouse vs. Whited, 25 N. Y., p. 170; Barry vs. Ransom, 12 id., p. 446; Griffiths vs. Reed, 21 Wend., p. 502; Greenough vs. McClelland, 2 El. & El., p. 424; Pooley vs. Harradine, 7 E. & B., p. 431; Davies vs. Stainbank, 6 De G., M. & G., p. 679. "He is not, however, entitled to contribution from subsequent indorsers."-Bradford vs. Corey, 5 Barb., p. 461; Ailsen vs. Barkley, 2 Speers, p. 747. The want of consideration for the under considera- taking of a maker, acceptor, or indorser of a negotiable instrument does not exonerate him from liability thereon to an indorsee in good faith for a consideration. Indorsee in due course, what. 3123. NOTE.-Seneca Co. Bank vs. Neass, 3 N. Y., p. 442; 5 Denio, p. 329; Purchase vs. Mattison, 6 Duer, p. 587; Ross vs. Bedell, 5 id., p. 462; Robbins vs. Richardson, 2 Bosw., p. 248. It is not necessary that a valuable consideration should be given by the indorsee.-Id. An indorsee in due course is one who, in good faith, in the ordinary course of business, and for value, before its apparent maturity or presumptive dishonor, and without knowledge of its actual dishonor, acquires a negotiable instrument duly indorsed to him, or indorsed generally, or payable to the bearer. NOTE. "In good faith." Although it has been held in some cases that gross negligence deprives an indorsee of the protection otherwise afforded to him (Pringle vs. Phillips, 5 Sandf., p. 157; Merriam vs. Granite Bank, 8 Gray, p. 254; Gill vs. Cubitt, 3 B. & C., p. 466; Down vs. Halling, 4 id., p. 330; Roth vs. Colvin, 32 Vt., p. 125; Smith vs. Mech. and Farm. Bk., 6 La. Ann., p. 610); the contrary rule is now firmly settled 3124. in England, and good faith alone declared to be the 66 An indorsee of a negotiable instrument, in due course, acquires an absolute title thereto, so that it is valid in his hands, notwithstanding any provision of law making it generally void or voidable, and notwithstanding any defect in the title of the person from whom he acquired it. NOTE.-See Sec. 368, Code of Civil Procedure; also, Sec. 1459, of this Code; see, also, Vinton vs. Crowe, 4 Cal., p. 309. The first part of this section is an old rule as to bills void by the common law.-Rockwell vs. Charles, 2 Hill, p. 499; Norris vs. Langley, 19 N. H., p. 423; Johnson vs. Meeker, 1 Wis., p. 436; see Bank of Genesee vs. Patchin Bank, 19 N. Y., p. 312. But it is otherwise as to bills void by statute.-Vallett vs. Parker, 6 Wend., p. 615; Rockwell vs. Charles, 2 Hill, p. 499. The rule is established in England by statute. The principle of law comprehended in the clause "notwithstanding any defect in the title of the person Rights of due course. indorsee in Instrument left blank. from whom he acquired it" is too well settled to need a citation of authorities. Moreover, an indorsee in due course can give a perfect title to any person, whether the latter acts in good faith or not. Thus, if A obtains a promissory note by fraud, and indorses it to B for value, B acting in good faith, a perfect title to the note may be vested in A, notwithstanding his fraud, by a subsequent transfer from B.-Solomons vs. Bank of England, 13 East, p. 135; Hascall vs. Whitmore, 19 Me., p. 104; Thomas vs. Newton, 2 Carr. & P., p. 606. For if an indorsee could not freely dispose of his property, selling it to whom he pleased, its value would be diminished in his hands. But if A takes up the note as an indorser, upon its dishonor, he does not acquire a better title than he had at first.-Devlin vs. Brady, 32 Barb., p. 518. 3125. One who makes himself a party to an instrument intended to be negotiable, but which is left wholly or partly in blank, for the purpose of filling afterwards, is liable upon the instrument to an indorsee thereof in due course, in whatever manner and at whatever time it may be filled, so long as it remains negotiable in form. NOTE.-Van Duzer vs. Howe, 21 N. Y., p. 531; Hubbard vs. Harlem R. R. Co., 36 Barb., p. 286; 14 Ab. Pr., p. 275; Schultz vs. Astley, 2 Bing. N. C., p. 544; 2 Scott, p. 815; Montague vs. Perkins, 17 Jur., p. 557; Griggs vs. Howe, 31 Barb., p. 100; Violett vs. Patton, 5 Cranch, p. 142; Fullerton vs. Sturges, 4 Ohio St., p. 529; Wiley vs. Moore, 17 Serg. & R., p. 438; Siegfried vs. Levan, 6 id., p. 170; Russell vs. Langstaffe, 1 Doug., p. 516; see Nelson vs. Wellington, 5 Bosw., p. 178; Smith vs. Hall, id., p. 319; see, also, Fisher vs. Dennis, 6 Cal., p. 577, affir'd Visher vs. Webster, 8 Cal., p. 109; Humphreys vs. Crane, 5 Cal., p. 173. ARTICLE IV. PRESENTMENT FOR PAYMENT. SECTION 3130. Effect of want of demand on principal debtor. 3131. Presentment, how made. 3132. Apparent maturity, when. 3133. Presumptive dishonor of bill, payable after sight. |