acceptor. It is said, however, that when the bill has been accepted supra protest, for the honour of one party to the bill, it may, by another individual, be accepted supra protest, for the honour of another. The holder is not bound to take an acceptance supra protest, but he would be bound to accept an offer to pay, supra protest. *The protest is *88 necessary, and should precede the collateral acceptance or payment; and if the bill, on its face, directs a resort to a third person, in case of a refusal by the drawee, such direction becomes part of the contract.d

As between the holder of a check and the endorser, it ought to be presented for acceptance with due diligence ;e but as between the holder and the drawer, a demand at any time before suit brought will be sufficient, unless it appears that the drawee has failed, or the drawer has, in some other manner, sustained injury by the delay. The drawee ought

• Beawes, tit. Bills of Exchange, pl. 42. Jackson v. Hudson, 2 Campb. 447.

▲ Pothier, h. t. pl. 137. Holland v. Pierce, 14 Martin's Louis. Rep. 449. An acceptance for honour is not an absolute but conditional acceptance, and an averment of presentment to the drawee for payment is necessary. Williams v. Germaine, 7 Barnw. & Cress. 468. This acceptance supra protest, does not apply by the commercial law to promissory notes. Story on Promissory Notes, 557.

• Rickford v. Ridge, 2 Campb. 537. Beeching v. Gower, 1 Holt, 313, note of the reporter. Clark v. Stackhouse, 2 Martin's Louis. Rep. 327. Mohawk Bank v. Broderick, 10 Wendell, 304. Mohawk Bank v. Broderick, 13 Wendell, 138. Parke, B., 9 Meeson & Co. 18. Where the parties reside in the same place, six days' delay was held to discharge the endorser. Gough v. Staats, ibid. 549. In Bodington v. Schlencher, 1 Neville & Manning, 540. S. C. 4 B. & Ald. 752, it was held, that the holder was bound to present it for payment on the day following that on which he receives it. Moule v. Brown, 2 Bingham, N. C. 266. Smith v. Janes, 20 Wendell, 192. S. P. If a check be received, say on Monday, the holder may present it at any time during banking hours on Tuesday. But if he pays it to his own banker on Tuesday, that banker, as his agent, must present it to the drawee on Tuesday, and has not till Wednesday to present it. That would be good as to notice of dishonour, but not as to presentment, and as the drawee failed on Wednesday, the holder was in default. Alexander v. Burchfield, 1 Carr. & Marshman, 75. S. C. 7 M. & Granger, 1061. The holder of a check is not entitled, because he passes it through his banker, to one day more for presenting it. The time is the same whether the presentment be made by himself or through his banker, i. e., the day following that in which he receives it.

Cruger v. Armstrong, 3 Johns, Cas. 5. child v. Corney, 9 Barnw. & Cress. 388.

Conroy v. Warren, ibid. 259. RothsSutherland, J., in Murray v. Judah, 6

to accept or refuse acceptance, as soon as he has had a reasonable opportunity to inform his judgment. If he cannot be found at the proper place, the holder may cause the bill to be protested; and if the drawee be dead, the bill may be presented to his executor or administrator.a

(5.) Of the endorsement.

A valid transfer may be made by the payee, or his agent, and the endorsement is an implied contract that the endorser has a good title, and that the antecedent names are genuine, that the bill or note shall be duly honoured or paid, and if not, that he will, on due protest and notice, take it up. In the case of a bill made or endorsed to a feme covert, or to a feme sole, who afterwards marries, the right to endorse it belongs to the husband. So, the assignee of an insolvent payee, or the executor or administrator of a deceased payee, are en

titled to endorse the paper. And if a bill be made *89 payable to a mercantile *house consisting of several

partners, an endorsement by 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 endorse it. So an infant payee or endorsee may, by his endorsement, 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 guaranties, by endorsement,

Cowen, 490, and Savage, Ch. J., in Mohawk Bank v. Broderick, 10 Wendell, 306.

a

Molloy, b. 2. c. 10. sec. 34. Bayley on Bills, 128.

bOgden v. Saunders, 12 Wheaton, 213. 341. Pardessus, Droit Com. 2. art. 347. Story on Promissory Notes, 145.

Parker, Ch. J., in P. Wms. 255. Conner v. Martin, cited in 3 Wils. Rep. 5. Rawlinson v. Stone, ibid. 1. In Harper v. Butler, Peters' U. S. Rep. 239, it was admitted, that an endorsement of a negotiable note by the executor of the payee, and good in the state where he was appointed and endorsed it, will enable the endorsee to sue in his own name in any other state. But a contrary doctrine was held in Stearns v. Burnham, 5 Greenleaf, 261, and Thompson v. Wilson, 2 N. H. Rep. 291. These last decisions are questioned in the case of Rand v. Hubbard, 4 Metcalf's R. 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.

previous to delivery to the payee, the payment of the note, he is held to be an endorser, under the New-York statute.a (1) The bill cannot be endorsed 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. (2)

Blank endorsements 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 endorsee; but no other use can be made of a blank endorsement in filling it up, than to point out the person to whom the bill or note is to be paid. A note endorsed 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. 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 endorsed in blank.c The holder may strike out the endorsement to him, though

Prosser v. Luqueer, 4 Hill's R. 420. An endorsement by the cashier of a bank for the bank, passes the title. Story on Promissory Notes, p. 132.

b Peacock v. Rhodes, Doug. Rep. 633. Francis v. Mott, cited in ibid. 634. Bull, N. P. 275. Livingston v. Clinton, and Cooper v. Kerr, cited in 3 Johns. Cas. 264. Lovell v. Evertson, 11 Johns. Rep. 52. Duncan, J., in 13 Serg. & Raule, 315. Kiersted v. Rogers & Garland, 6 Harr. & Johns. 282. Evans v. Gee, 11 Peters, 80. In Sprigg v. Cuny's Heirs, 19 Martin's Louis. Rep. 253, it was held, that the holder of a negotiable note, endorsed in blank, might sue on it, without filling it up to himself. Under the French law, an endorsement, in blank, of a promissory note, is not valid. Code de Comm. art. 137, 138. The law is the same in Germany. Heinec. de Campb. c. 2. sec. 10, 11. Nor can the holder of a bill drawn and endorsed in France, in blank, recover against the acceptor in the English courts, for such an endorsement was not a valid contract by the lex loci contractus. Trimbey v. Vignier, 1 Bing. N. C. 151.

c

Gorgier v. Mieville, 3 Barnw. & Cress. 45.

(1) In a case where a person deceased had written his name upon a bill payable to order, and after his death the executor merely delivered the bill to the plaintiff, it was held, he acquired no title. It would seem that an endorsement of a bill payable to order, without delivery, or a delivery without endorsement, is insufficient to pass the legal title. Clarke v. Sigourney, 17 Conn. R. 511. Smith v. Wyckoff, 8 Sandf. Ch. R. 77.

(2) A note given to two or more payees, who are not in partnership, must be endorsed by all, to enable the endorser to sue on the note. Dwight v. Pease, 3 M'Lean R. 94. But where a person, whose name was on the note, refused to be a payee, and it was endorsed by the other, and the name of the person refusing was left in by mistake, it was held the endorsee might recover. Pease v. Dwight, 6 Howard, 190.

full, and all prior endorsements in blank, except the first, and charge the payee or maker.a payee or maker. When the endorser takes up the note, he becomes the holder as entirely as though he had never parted with it.b (1) There is no necessity for any negotiable words in the endorsement. An endorsement to A. B., without adding "or order," is a good general endorsement.c But to give effect to an endorsement, there must be delivery. (2) A bill originally negotiable, continues so in the hands of the endorsee, unless the general negotiability be restrained by a special endorsement by the payee. He may stop its negotiability by a special endorsement, but no subsequent endorsee can restrain the negotiable quality of the bill. The first endorser is liable to every subsequent bona fide holder, even though the bill or note be forged, or fraudulently circulated. If a blank note or check be endorsed, it

e

Dollfus v. Frosch, 1 Denio, 367.

Conant v. Willis, 1

Smith v. Clarke, Peake's N. P. Rep. 225. United States v. Barker, 1 Paine's Rep. 156. M'Donald v. M'Gruder, 3 Peters' Rep. 474. M'Lean's Rep. 427. Leidy v. Tammany, 9 Watts' R. 359.

с

Bayley on Bills, 128. Story on Promissory Notes, 150.

d Marston v. Allen, 8 Meeson & Welsby, 494.

Edie v. East India Company, 2 Burr. Rep. 1216. Ancher v. The Bank of England, Doug. Rep 637. Smith v. Clarke, 1 Esp. Rep. 180. Story on Promissory Notes, p. 136. n. 2. Restrictive endorsements are also allowed in France and Germany. Pothier, de Change, pp. 23. 42. 89. Heineccius, de Carb. c. 2. sec. 10.

Lambert v. Peck, 1 Salk. Rep. 127. Putnam v. Sullivan, 4 Mass. Rep. 45. Codwise v. Gleason, 3 Day's Rep. 12. Herbert v. Huie, 1 Ala. R. N. S. 18. Where several successive endorsees have advanced money on the draft, the first endorsement being a forgery, each may recover from his immediate endorser. Canal Bank v. Bank of Albany, 1 Hill's Rep. 287. The endorsement of a bill implies an undertaking that all the antecedent parties upon the bill are persons competent to draw and endorse the same, and that the endorser bas, in virtue thereof, a good title to the bill, and to convey the same by endorsement. Story on Bills,

(1) The endorser of a negotiable note cannot recover against the maker, so long as the endorsee has a right to demand payment of the maker; not even if the endorsee has recovered judgment against the endorser, and collected a part of it. Little v. Ingalls, 13 N. Hamp. R. 44. Where the payee of a note, which he had transferred, paid and took up the note, the statute of limitations was held to be a defence of the maker, at the expiration of six years from the time the note was payable, in like manner as if it had never been transferred by payee. Woodruff v. Moore, 8 Barb. R. 171.

(2) The drawer of an accepted bill of exchange wrote his name across the back, and delivered it to A. to get it discounted; who, instead thereof, deposited it with B. as security for money advanced by B. without fraud; held, that this was a valid endorsement to B. Palmer v. Richards, 1 Eng. Law & Eq. R. 529.

will bind the endorser to any sum, or time of payment, which the person to whom he intrusts the paper chooses to insert in it.a (1) This only applies to the case in which the body of the instrument is left blank. If negotiable paper, regularly filled up, be endorsed in blank, the endorser is holden only in the character of endorser, and according to the terms and legal operation of the instrument.b (2)

122. 125. An endorser of a promissory note does not stand in the situation of a maker of it, whether he be the payee, or endorsee, or a third person. But Mr. Justice Story considers him to stand in the same situation as the drawer or endorser of a bill, and a collateral liability is created. Story on Promissory Notes, 134, 135.

Russell v. Langstaffe, Doug. Rep. 514. Violett v. Patton, 5 Cranch, 142. Johnson v. Blasdale, 1 Smedes & Marshall Miss. R. 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 And. Rep. 529. Wiley v. Moor, 17 Serg. & Rawle, 438. Woolley v. Constant, 4 Johns. Rep. 60. Ex parte Kerwin, 8 Cowen, 118. The ancient cases were otherwise, and so are some of the modern American cases, as, see 1 Yerger's Rep. 69. 149. 2 Dev. N. C. Rep. 379. 381. 3 Bibb. 361. 1 Washington's Rep. 73. 1 Hill's S. C. Rep. 267. United States v. Nelson and Myers, 2 Brock. Rep. 64. Williams v. Crutcher, 5 Howard's M. Rep. 71. In Indiana the endorser of a note is understood to warrant two things:-1. That the note is valid, and the maker liable to pay it. 2. That the maker is solvent, and able to pay it. Howell v. Wilson, 2 Blackf. Ind. Rep. 418.

b See Jackson v. Richards, 2 Caines' Rep. 343. In Beckwith v. Angell, 6 Conn. Rep. 315, it was held, that if a promissory note be endorsed in blank, under a parol promise to guaranty the payment, the holder may fill up the blank, pursuant to the special agreement, and prove that agreement by parol. The endorser will be liable, under such circumstances, without proof of the demand and notice requisite in other cases. There have been decisions to the same effect in Josselyn v. Ames, 3 Mass. Rep. 274. Ulen v. Kittredge, 7 ibid. 233. Moies v. Bird, 11 ibid. 436. Upham v. Prince, 12 id. 14. See, also, Story on Bills, 238. n. 2. Nelson v. Duboys, 13 Johnson, 175. Campbell v. Butler, 14 ibid. 349. But the endorser of a negotiable note cannot be treated as a guarantor, provided he could, by the holder,

(1) Torrey v. Fisk, 10 S. & M. R. 590. And see Smith v. Wyckoff, 3 Sand. Ch. R. 77. But if a person sign a note on condition that another shall join with him, and the note is negotiated without the other's joining, the signer is not liable on the note. Aude v. Dixon, 5 Eng. L. & E. R. 502.

(2) In New-York, when a third person endorses his name on a note previous to its being endorsed by the payee, though the party receiving the note takes it on the credit of his name, such person is liable only as a second endorser. Baker v. Martin, 3 Barb. S. C. R. 634. Ellis v. Brown, 6 id. 282. The able dissenting opinion of Pratt, P. J., in the latter case, shows, in a forcible manner, the injustice which may result, in many cases, from the application of the above doctrine. It is held, in two cases, that if a person, before the note is endorsed by the payee, endorse a note in blank, he is liable as an original promissor. Irish v. Cutter, 31 Maine R. 586. Bryant v. Eastman, 7 Cush. R. 111. See, also, Orrick v. Colston, 7 Gratt. R. 189. Carroll v. Weld, 18 I. R. 682. VOL. III.

8