In a Scotch case where the payee of a bill transferred § 61 it for value without indorsing it, it was held that the transferee was entitled to recover from the acceptor: Hood v. Stewart, 17 Court of Session Cases, 749 (1890).

In a Quebec case, Dupuis v. Marsan, 17 L. C. J. 42 (1872), it was held that the transferee of a note for $35 payable to order, could become the holder without indorsement by the payee, and that he might prove the transfer by parol under Art. 1233 of the Civil Code, which says that proof may be made by testimony in all matters in which the sum in question does not exceed $50. In another Quebec case it was held, that where the payee of a note, payable to order, gave it without indorsing it as collateral security to a creditor, and the payee became insolvent and his whole estate was sold by the assignee to the creditor who held the note, such sale and transfer was equivalent to indorsement, and he could collect from the maker: Guerin v. Orr, 5 L. N. 379 (1882). The former of these decisions at least is not in accordance with the present Act, or indeed with Article 2286 of the Civil Code.

Where the maker of a promissory note payable to his own order, transferred it for value without indorsing it, he was held liable to the transferee, and a judgment ordering him to indorse it held to be superfluous: Coutu v. Rafferty, M. L. R. 7 S. C. 146 (1891). In this case indorsers were held liable without protest as indorsers "pour aval "; but one of them appealed, and it was held that the instrument was not really a promissory note and he was not liable: Trenholme v. Coutu, Q. R. 2 Q. B. 387 (1893). Where a note is not indorsed by the payee the presumption is that it is still his property: Demers v. Hogle, Q. R. 7 S. C. 476 (1895).

Without endorse

ment.

Right to

If the transferrer refuses to indorse the bill, the transferee has a right of action to compel him: Ex parte Green- compel ing, 13 Ves. 206 (1806); Day v. Longhurst, 62 L. J. Ch. 334 (1893).

To enable C. to obtain a loan from plaintiff, defendant drew a bill payable to his own order. C. accepted the bill and handed it to plaintiff, who gave C. the money, not noticing that the bill was not endorsed by defendant. Held that plaintiff was entitle to defendant's endorsement and to

indorse

ment.

§ 61

Transfer.

Repre

recover the amount of the bill: Walters v. Neary, 21 T. L. R. 146 (1904).

If the transferrer should die before indorsing, his personal representatives would be subject to the same obligation. Where such indorsement has been omitted by mistake, the transferee has not the right to sign the name of the transferrer in order to perfect his title: Harrop v. Fisher, 10 C. B. N. S. 196 (1861).

A payee who has transferred for value without indorsing may be made a party: Vandal v. Domville, 20 R. L. 305 (1890).

A promissory note was transferred by delivery to the plaintiffs by way of pledge to secure repayment of an advance. There was no intention on the part of the transferrer to transfer the whole of his rights in the note, nor to indorse it. It was held that the plaintiffs could not recover from the maker: Good v. Walker, 61 L. J. Ch. 736 (1892).

Where it was shewn that the drawer of a bill made the bank where it was made payable the payee merely for the purpose of collection, and the bank returned it to the drawer after dishonour, it was held that the drawer could recover from the acceptor without indorsement by the bank: Nova Scotia Carriage Co. v. Lockhart, 1 E. L. R. (N.S.) 76 (1906).

2. Where any person is under obligation to ensentative dorse a bill in a representative capacity, he may capacity. endorse the bill in such terms as to negative personal liability. 53 V., c. 33, s. 31 (2). Imp. Act, ibid.

This sub-section would be applicable where bills or notes were made payable to the order of persons, who died or lost their capacity before endorsing them, when executors, administrators, tutors, or curators would require to do so. Endorsing in such capacity would ordinarily relieve them from personal liability: sec. 61; but it would be prudent in these cases to add such words as without recourse or "without recourse to me personally" sec. 34; Ex parte Mowbray, 1 Jac. & W. 428 (1820); Watkins v. Maule, 2 Jac. & W. 243 (1820). The mere addition to the signature of words describ

ing the signer as an agent or as filling a representative char- $ 61 acter does not exempt him from personal liability: sec. 52.

62. An endorsement in order to operate as a ne- Endorsing. gotiation,

(a) must be written on the bill itself and be Writingsigned by the endorser;

(b) must be an endorsement of the entire bill. Entire bill. 53 V., c. 33, s. 32 (1). Imp. Act, ibid.

According to sub-section 3 of section 60 a bill payable to order is negotiated by the endorsement of the holder completed by delivery. The present section sets out the conditions of such an endorsement. In the first place it must be "written." This as we have seen, according to the Interpretation Act, R. S. C. c. 1, s. 34 (31), includes words printed, painted, engraved, lithographed or otherwise traced or copied. A stamp is frequently used by banks and other corporations, so that the only writing is the signature of the officer who executes it. The endorser need not sign with his own hand; his signature may be written by some one authorized by him: secs. 4 and 51. The endorsement and signature may be in pencil: ante, p. 46. As to what is sufficient signature, see page 49.

Indorsement in its literal sense means writing one's name on the back of the bill, but the indorsement may be on any part of it, even on the face: Young v. Glover, 3 Jur. N. S. Q. B. 637 (1857); Ex parte Yates, 2 De G. & J. 191 (1858); Carrique v. Beaty, 28 O. R. 175 (1896); Arnot v. Symonds, 85 Penn. St. 99 (1877). Where a person signs a bill otherwise than as a drawer or acceptor, he is liable as an endorser: sec. 131.

An agreement in writing to indorse a bill is not an in- Not an indorsement: Rose v. Sims, 1 B. & Ad. 521 (1830); Harrop dorsement. v. Fisher, 10 C. B. N. S. at p. 204 (1861). Nor is the assignment of a bill by a separate writing: Re Barrington, 2 Scho. & Lef. 112 (1804); Ex parte Harrison, 2 Brown C. C. 615 (1789). The latter may be a transfer of all the rights of the holder to the transferee, but it does not operate as a

§ 62 commercial negotiation under the law merchant, to which the law accords special privileges, one of them being that the Negotia holder may give to his transferee greater rights than he himself has, when, the latter is in the position to become a holder in due course.

tion.

A bank stamped its name on cheques which it was sending through the clearing house. This was for the purpose of identifying them as its property, and not for negotiation. It was not an indorsement: Rex v. Bank of Montreal, 10 O. L. R. at p. 135 (1905).

159.

Only one part of a bill in a set should be endorsed: sec.

Allonge.

ILLUSTRATIONS.

1. The following words over the signature of the payee on the back of a bill are a good special indorsement: "I hereby assign this draft and all benefit of the money secured thereby to J. G.": Richards v. Frankum, 9 C. & P. 225 (1840); Sears v. Lantz, 47 Iowa, 658 (1878); Hatch v. Barrett, 34 Kansas, 223 (1885).

2. The holder of a note writes on the back, "I bequeath-pay the within to D. or his order at my death," signs it and gives it to D. This is not an indorsement: Mitchell v. Smith, 33 L. J. Ch. 596 (1864).

3. In Michigan it has been held that the words, "I transfer my right, title and interest in the within note to Y." over the signature of the indorser on the back of a note, do not operate as a commercial indorsement, but only as an ordinary assignment, and if for value before maturity, do not give the transferee any higher or greater rights than the transferee possessed: Aniba v. Yeomans, 39 Mich. 171 (1878). This has been criticized and not followed in other States: 1 Daniel, § 6886.

2. An endorsement written on an allonge, or on a copy of a bill issued or negotiated in a country where copies are recognized, is deemed to be written on the bill itself. 53 V., c. 33, s. 32 (1). Imp. Act, ibid.

An allonge (literally lengthening or elongation) is a paper attached to the bill to receive endorsements, when there is no longer room for them on the back of the bill itself.

Copies of bills are not used in England, Canada or the § 62 United States; but on the continent of Europe, where the practice of drawing bills in sets is not followed, copies are sometimes used for convenience of transfer while the original is being forwarded for acceptance: Nouguier, § 208.

dorsement

3. A partial endorsement, that is to say, an en- Partial endorsement which purports to transfer to the endorsee a part only of the amount payable, or which purports to transfer the bill to two or more endorsees severally, does not operate as a negotiation of the bill. 53 V., c. 33, s. 32.

There may be a partial acceptance of a bill: section 38, (3) (b). An endorsement of such a bill would be valid, as it would be an endorsement of the entire bill as accepted. An endorsement of part of the bill does not constitute the endorsee a holder or give him the rights of a holder. A person who has made himself liable on a bill cannot be compelled to defend two actions on it instead of one. See Hawkins v. Cardy, 1 Ld. Raym. 360 (1704); Jones v. Broadhurst, 9 C. B. 173 (1850); Heilbut v. Nevill, L. R. 4 C. P. at p. 358 (1869); Miller v. Bledsoe, 2 Ill. 530 (1838).

63. The simple signature of the endorser on the Signature bill. without additional words, is a words, is a sufficient sufficient. endorsement.

payees.

2. Where a bill is payable to the order of two or Two or more payees or endorsees who are not partners, all more must endorse, unless the one endorsing has authority to endorse for the others. 53 V., c. 33, s. 32. Imp. Act, ibid.

This simple method of forming a contract by a signature alone without words is part of the law merchant. In the case of a corporation the seal alone is sufficient, but is not necessary sec. 5. As to what is a signature under the Act, see p. 49.

It can perhaps hardly be said that there is any very well Manner of settled rule as to the manner in which endorsements should endorsebe made. It is important that the signature would follow

ment.