No. 1137. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 4, art. 1. No. 1138. for non-acceptance and non-payment, and in the latter they need not; a notice of dishonor being sufficient in such case. Whether protest of a foreign bill for nonacceptance is indispensable, according to the English rule, or whether a protest for non-payment will be sufficient, seems not to be a settled question.(a) § 4. Of the indorsement. 1137. By indorsement is understood, in its most extensive sense, what is written on the back of an instrument of writing, and having relation to it; as, a receipt or acquittance on a bond; an assignment on a promissory note. But in the sense this word is used in relation to a bill of exchange or promissory note, payable to order, it is the writing of one's name on the back of such bill or note, with an intent to become a party to it, and to be responsible for it, on certain conditions. It will be proper to consider, 1, the form; and, 2, the effect of an indorsement. Art. 1.-Of the form of an indorsement. 1138. An indorsement may be in full, in blank, restrictive, conditional, or qualified. 1. It is in full, when mention is made of the name of the indorsee; as, "pay to A B, (the indorsee,) C D," (the indorser.) 2. An indorsement is in blank, when the name of the indorsee is not mentioned, and the indorser simply writes his name, "C D."(b) But a writing or assignment on the face of the note or bill, would, however, be considered to have the force and effect of an indorsement.(c) When the indorsement is once made in blank, the negotiability of the bill cannot be restrained by any special indorsement of a subsequent holder, (d) be (a) 3 Kent, Com. 95. (6) Chit. on Bills, 170; 13 S. & R. 315; Dugan v. U. S., 3 Wheat. 183. (c) 18 East, 12. (d) Smith v. Clarke, Peake, 225; S. C. 1 Esp. 180; Peacock v. Rohdes, 2 Dougl. 611; Anon. 12 Mod. 345. No. 1139. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 4, art. 2. No. 1140. cause when once a bill has been so indorsed, the holder may strike out all the subsequent indorsements, whether special or not, and he may then recover as the indorsee of the payee. 3. A restrictive indorsement is one which confines the negotiability of the bill, by using express words to that effect, as by indorsing it "payable to A B only," or by using other words clearly demonstrating his intention so to do. (a) 4. A conditional assignment is one which depends for its validity upon the performance of a condition. 5. A qualified indorsement, which indeed wants one of the qualities of a regular indorsement, namely, the conditional responsibility of the indorser, is a transfer of the bill or note to the indorsee, (b) but without any liability to the indorser; the words usually employed for this purpose are, sans recours, without recourse. (c) But although these words will exempt the indorser from all responsibility on the contract, they do not relieve him from the responsibility which he incurs, if the instrument he passes has been forged, (d) or stolen.(e) Art. 2.-Of the effect of the indorsement. 1139. The effect of a regular indorsement is different as it affects, 1, the indorser and indorsee; 2, the indorser and the acceptor; 3, the indorser and future parties to the instrument. 1140.-1. An indorsement is sometimes an original engagement, as, when a man draws a bill payable to his own order, and indorses it. In general, however, it operates only as an assignment, as, when the bill is perfect and the payee indorses it over to a third (a) Brown v. Jackson, 1 Wash. C. C. 512; Drew v. Jacock, 2 Murph. 138. (b) Epler v. Funk, 8 Penn. St. R. 468. (c) Chit, on Bills, 179. (d) Charnley v. Dulles, 8 W. & S. 353; Frazer v. D'Invilliers, 2 Penn. St. R. 200. (e) 2 Penn. St. R. 200. No. 1141. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 4, art. 2. No. 1142. person. Considered as an assigment, it carries with it all the rights which the indorsee had, and, unless qualified, a guarantee of the solvency of the previous parties. (a) This guarantee is, however, upon the implied condition that the holder will use due diligence in making a demand of payment from the acceptor, and give to the indorser notice of non-acceptance or non-payment. 1141.-2. As between the indorsee and the acceptor, the indorsement has the effect of giving to the former all the rights which the indorser had against the acceptor, and all other parties liable on the bill, and it is not required that the acceptor, or other party, should signify his consent or knowledge of the indorsement, and if made before the bill or note becomes due, it conveys all these rights without any set off, as between the antecedent parties. (b) Being thus fully invested with all the rights in the bill, the indorsee may himself indorse it to another, when he becomes himself responsible to all future parties as an indorser, as the others were to him. 1142.-3. Unless his indorsement is qualified, the indorser becomes responsible to all future parties to the bill.(c) But it must be remembered that an indorsement will not convey the legal title to recover on the bill, unless the instrument is made negotiable, that is, payable to order or to bearer. A bill or note payable to an individual, without mentioning to his order or to bearer, cannot be transferred so as to entitle the assignee to sue in his own name. (d) It is immaterial whether the bill be payable "to the order of A B," or "to A B, or order."(e) (a) Wilkinson v. Nicklin, 2 Dall. 398; Perry v. Cramond, 1 Wash. C. C. R. 100; Humphries v. Bright, 4 Dall. 370. (b) Norton v. Wait, 2 App. 175. (c) Van Staphorst v. Pearce, 4 Mass. 258; Bank of U. States v. Beirne, 1 Grattan, 234; Hubbard v. Williamson, 5 Iredell, 397. (d) Girard v. La Coste, 1 Dall. 194; Smurr v. Forman, 1 Ham. 272. (e) Huling v. Hugg, 1 Watts & Serg. 418. No. 1143. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 5, art. 1, 2. No. 1145. § 5. Of the acceptance of a bill of exchange. 1143. The acceptance of a bill of exchange is an act by which the drawee, or other person, evinces his assent or intention to comply with, or be bound by, the request contained in a bill of exchange to pay the same; or in other words, it is an engagement to pay the bill when due. It will be proper to consider, 1, by whom the acceptance ought to be made; 2, the time when it ought to be made; 3, the form of the acceptance; 4, its extent and effect. Art. 1.-By whom the acceptance ought to be made. 1144. The acceptance must be made by the drawee himself, or by one authorized by him. On the presentment of a bill, the holder has a right to insist upon such an acceptance by the drawee as will subject him, at all events, to the payment of the bill, according to its tenor; consequently, such acceptor or drawee must have capacity to contract, and to pay the amount of the bill, or it may be treated as dishonored. (a) Once having accepted the bill, the drawee is not bound to reiterate his acceptance, he cannot be asked therefore to accept all parts of a set of a bill.(b) A treasurer of a corporation accepting a bill without authority, does not bind the corporation, (c) and one accepting a bill and adding to his name "administrator," is responsible in his individual capacity.(d) Art. 2.-Of the time when the acceptance ought to be made. 1145. The acceptance may be made before the bill is drawn or afterward. When it is made before the bill is drawn, it is only a promise to accept the bill (a) Marius, 22. (b) Pardess. n. 365. (c) Atkinson v. St. Croix Man. Co., 11 Shep. 171. No. 1146. Book 2, part 2, tit. 5, chap. 3, sec. 2, § 5, art. 3. No. 1148. when drawn; such promise binds the promisor. (a) But it will not be binding if the bill be payable after sight.(b) When made after the bill is drawn, it must be made within twenty-four hours after presentment, or it may be treated as dishonored. (c) The acceptance may be before or after the bill becomes due, and, even after refusal to accept, the drawee may make a binding acceptance. The bill may be accepted even after it has been protested for non-acceptance, and this is called an acceptance supra protest. It may be accepted by any one for the honor of one party to the bill, and it may be so accepted by another, for the honor of another party.(d) Art. 3.-Of the form of the acceptance. 1146. The acceptance may be in writing on the bill itself, or on another paper, or it may be verbal; or it may be express or implied. 1147.-1. An express acceptance is an agreement in direct and express terms, to pay a bill of exchange by the party on whom it is drawn, or some other person, for the honor of some of the parties. It is usually in the words accepted or accepts, but other words showing an engagement to pay the bill will be equally binding.(e) 1148.-2. An implied acceptance is an agreement to pay the bill, not by direct and express terms, but from such acts of the parties as would infer an acceptance; for example, if the drawee writes on the bill seen," "presented," or any other thing, as the day 66 (a) Russell v. Wiggin, 2 Story, 213; Bayard v. Lathy, 2 McLean, 462; Read v. Marsh, 5 B. Munr. 8; Kennedy v. Geddes, 8 Port. 263; Wildes v. Savage, 1 Story, 22. (b) 1 Story, 22; 2 Story, 213. (c) Chit. Bills, 212, 217. (d) Beawes, tit. Bills of Exchange, pl. 52. (e) Spear v. Pratt, 2 Hill, 582. |