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 entitled to

endorse the paper. And if a bill be made pay*89 able 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, previous to delivery to the payee, the payment of the note, he is held to be an endorser, under the New-York statute.b

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.

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 endor

state.

■ 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 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 R. 259, and the doc. trine 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.

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.

-see; 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. The holder may strike out the endorsement to him, though full, and all prior endorsements in blank, except the first, and charge the payee or maker.c When the endorser takes up the note, he becomes the holder as entirely as though he had never parted with it. 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. But to give effect to

■ 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. & Role, 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 endorsment, 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. 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.

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

Dollfus v. Frosch, 1 Denio, 367.

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

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

an endorsement, there must be delivery. 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 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. This only

• 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 has, in virtue thereof, a good title to the bill, and to convey the same by endorsement. Story on Bills, 122. 125. An endorser of a promis. sory 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.

d 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. U. S. v.

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.a

In the case of blank endorsements, possession is evidence of title; but if the endorsements be all filled up, the first endorsee cannot sue without showing that he had taken up the bill or note. The acceptor or maker is liable only to the last endorsee. The prior endorsers have parted with their interest in the paper, and are presumed to have received a valuable consideration for it. But if the last endorsee protests the bill for

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.

* 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, have been charged as endorser. The prior cases in Johnson are considered as erroneous on this point. Seabury v. Hungerford, 2 Hill's R. 84. Hall v. Newcomb, 3 Id. 233. In Parker v. Riddle, 11 Stanton's Ohio R. 102, it was held, that if a note not negotiable be endorsed, it is a collateral undertaking, and payment must be demanded, and notice given to the endorser, as upon negotiable paper.

The rule now is, that the holder of a negotiable note by a blank endorsement, may sue upon it without filling up the blank. Chitty on Bills, ed. 1839, 255. 2 Miller's Loui. R. 192. Chewning v. Gatewood, 5 Howard's Miss. R. 552. The presumption of title in the holder is good until the contrary be established.

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non-payment, and it be paid by a prior endorser, the *latter acquires, by such payment, a new title to the instrument."

Though the holder of paper fairly negotiated, be entitled to recover, and to shut out almost every equitable defence, yet the rule applies only to the case of negotiable paper taken bona fide in the course of business before it falls due. If taken after it is due and payable, the presumption is against the validity of the demand, and the purchaser takes it as a dishonoured bill, at his peril, and subject to every defence existing against it before it was negotiated. But it has been a question, when a note, payable upon demand, is to be deemed a note out of time, so as to subject the endorsee, upon a subsequent negotiation of it, to the operation of the rule. When the facts and circumstances are ascertained, the reasonableness of time is a matter of law, and every case will depend upon its special circumstances. Eighteen months, eight months, seven months, five months,

■ Mendez v. Carreroon, 1 Lord Raym. 742. Gorgerat v. M'Carty, 2 Dallas' Rep. 144.

Brown v. Davies, 3 Term Rep. 80. Lee v. Zagury, 8 Taunt. 114. Tinson v. Francis, 1 Campb. Rep. 19. Sargent v. Southgate, 5 Pick. 312. 317. 319. Andrews v. Pond, 13 Peters' R. 65. A stricter course is observed in the case of bills and notes than in that of checks; and a party taking a check over-due, does not necessarily take it subject to all the infirmities of the previous title, provided he exercises a reasonable caution in taking it; and that is a question of fact for a jury. Rothschild v. Corney, 1 Dawson & Lloyd, 325. Mohawk Bank v. Broderick, 13 Wendell, 133. A bill may be endorsed after it is due, for it continues negotiable ad infinitum until paid or discharged, provided the subsequent circulation does not prejudice any of the endorsers. Bayley on Bills, 5th ed. 156. 158. Hub. bard v. Jackson, 4 Bingham, 300. Callow v. Lawrence, 3 Maule & Selw. 95. In Burrough v. Moss, 10 Barnw. & Cress. 558, and in Hughes v. Large, 2 Barr, Penn. R. 103. The rule in the text was restricted to all equities arising out of the note transaction itself; and it was held not to extend to protect a set-off, in respect of a debt due from the endorser to the maker, arising out of collateral matters. It extends only to matters of set-off existing at the time of the endorsement. Baxter v. Little, 6 Metcalf, 7.