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should pass till that time: the bills were received on terms which were not satisfied, and there was no endorsement. Bell v. Ingestre, 12 Adol. & El. N. S. 317, 64 Eng. Com. Law Rep. 317. "An endorsement," Lord Campbell observes, "requires that there shall be a delivery of the bill, with an intent to make the person to whom it is endorsed owner of the bill- —a party to the bill-and transferree of the property in it. There is no endorsement if the holder merely writes on the bill a direction to pay it to another person, and the other person gets possession without the holder's consent. Nor is there any endorsement, though the holder give that person possession of the bill, if the delivery be merely for a collateral purpose, and without the intention to make him transferree of the property in the bill." Lloyd v. Howard, 15 Adol. & El. N. S. 999, 69 Eng. Com. Law Rep. 999, 1 Eng. Law & Eq. 227.
But if the holder puts his name on the back of a bill, and delivers it to his agent, who delivers it to a third person for value, that is an endorsement from the holder to such third person. Parke, B. in Barber v. Richards, 6 W. H. & G. 64. Here Edwards put his name on the back of the bill, and delivered to his agent, Brown, who disobeyed his order to get it discounted, and pledged it for value to Tingey. It was considered that there was a valid endorsement from Edwards. to Tingey; for though as between them there may have been no intention to give the latter a title, there was an intention to give a title to the person to whom Brown might deliver the bill, and he delivered it to Tingey. There being no fraud on Tingey's part, the property passed to him. On the same principle, the supreme court of New York decided Vallett v. Parker, 6 Johns. 620.
3. As to the terms in which the endorsement is written; if endorsement be in blank, right to fill it up.
When the payee endorses a negotiable note to a third person, though the endorsement contain a stipulation that the endorser is not to be responsible if the maker does not pay, this does not affect the negotiability of the paper, nor prevent the property of the note passing to the endorsee; he may, nevertheless, sue the promisers upon it in his own name. Rice v. Stearns &c. 3 Mass. 227; Richardson v. Lincoln, 5 Metcalf 204; Epler v. Funk, 8 Barr 468; Bisbing v. Graham, 2 Harris 16.
In the case of a blank endorsement, it is well settled to be competent for the holder to make himself the endorsee, by filling up the blank endorsement with proper words. LamVOL. II.-15
bert v. Oakes, 1 Ld. Raym. 443; 12 Metcalf 453; Ritchie &c. v. Moore &c. 5 Munf. 395. It may be filled up at any time before the trial of the suit brought by the party claiming under that endorsement. Evans v. Gee, 11 Peters 84. It is no valid objection that the endorsement remained blank during the endorser's life, and was not filled up till after his death. Cope v. Daniel, 9 Dana 415. Indeed, however it may have been decided to the contrary in North Carolina, (Whitehead v. Potter, 4 Iredell 266,) or Maryland, (Hudson v. Godwin, 5 Har. & J. 115, and Day &c. v. Lyon, 6 Id. 140,) it is not in Virginia material that it should be filled up at all. 5 Munf. 395. For the blank endorsement proves the assent of the endorser to transfer the instrument if the holder elect to treat it as a transfer; and such election is proved as well by the holder's suing on it as by writing over it an assignment. Hence an appellate court will regard it no valid objection to a judg ment for the endorsee, that by the note made part of the record, the endorsement appears to be in blank. Rees v. Conococheague Bank, 5 Rand. 326. The contrary decisions in Maryland, above referred to, led no doubt to the Maryland act of 1825, ch. 35; which makes the rule there similar to what it is in Virginia-at least so far as it relates to the action of the appellate court. Whiteford v. Buckmyer &c. 1 Gill 147.
When the name of the payee is not endorsed in blank, but is annexed to a guaranty of payment of the note, the purpose of the signature being expressed, there can be no implication. that the purpose was to transfer the note as endorser generally. It is therefore held that such a guaranty will not authorize a person to sue in his own name as endorsee. It is so where in the writing signed by the payee no name is inserted of the party entitled to hold by the endorsement. Tyler v. Binney, 7 Mass. 479. Though a different view seems to have been taken in Blakely v. Grant, 6 Mass. 386, the supreme court of Massachusetts has since adopted Tyler v. Binney as the better opinion. It so said in a case wherein the endorsement was open to the farther objection that it was not by the payee alone, but a joint guaranty of him and another. This could not be transformed into a general endorsement by the payee. Tuttle v. Bartholomew, 12 Metcalf 452. Irrespective of that, however, the plaintiff could not enforce payment by a suit in his own name as endorsee. Belcher v. Smith, 7 Cush. 482. Notwithstanding the case of Upham v. Prince, 12 Mass. 14, the principle is established in Massachusetts, that an instrument filled up and complete in itself as a guaranty of payment of a note, cannot be altered by striking out or inserting words, to make it a general endorsement. True v. Fuller, 21 Pick. 140, 12 Metcalf 454.
4. Where successive endorsements,-which may be struck from the bill by the holder; and of which he may avail himself.
So strict a rule as was laid down in Gorgerat &c. v. McCarty, 1 Yeates 94, 2 Dall. 144, would not now be acted on. The supreme court of the United States has said that if any person who endorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more endorsements in full subsequent to the one to him, without producing any receipt or endorsement back from either of such endorsees, whose names he may strike from the bill or not as he may think proper. Dugan &c. ex'ors of Clarke v. U. S. 3 Wheat. 172; Lonsdale v. Brown, 3 Wash. C. C. R. 404. This rule has been generally approved. Mullen v. French, 9 Watts 96; Clark v. Schwing, 1 Dana 335; Bank of Tennessee v. Smith, 9 B. Monroe 612; French v. Barney, 1 Iredell 219; Kiersted v. Rogers, 6 Har. & J. 285, 6; 2 Texas Rep. 510, 11; Picket v. Curtis, 1 Sumner 478. Mr. Justice Story thinks that such is also the French law. S. C.; 2 Pardessus, p. 379, art. 349.
The rule which now prevails in Louisiana accords with that established by the supreme court of the United States. There may be on the note the plaintiff's endorsement, and no evidence to shew how he became repossessed of it; but this circumstance will not prevent his recovery when the endorsement is in blank. 7 Martin N. S. 254; Griffon v. Jacobs &c. 2 Louis. 193; Barbarin v. Daniels, 7 Id. 481; Mourain v. Devall &c. 12 Id. 95. If the endorsement was special, the early Louisiana decisions required the plaintiffs to shew that the endorsee was merely their agent, Dicks v. Martin &c. 6 Martin N. S. 45; or to shew a re-transfer, Hart &c. v. Windle, 15 Louis. 266. But the court has changed this opinion, and adopted the rule of the supreme court. Huie v. Bailey, 16 Louis. 217; Gordon v. Nelson, Id. 324.
That is where the bill has been endorsed in blank by the payee. When after his blank endorsement there is a special endorsement by another person, making it payable to a certain person or order, should the bill get back to the person who made that special endorsement, he may consider himself as the endorsee of the payee and strike out the other endorsements, Smith &c. v. Clarke, 1 Peake's N. P. Cas. 295, 1 Esp.
80; Myers & Son v. Friend &c. 1 Rand. 12; or if, from the person who made that special endorsement, it get back to the payee, he may bring an action as if there had been no endorsement, Mitchell v. Fuller, 3 Harris 268.
At one time the omission of the words "or order" in the endorsement by the drawer was thought to render the endorsement restrictive: but it has long been settled otherwise. If the bill itself be payable to the payee or order, and so in its nature negotiable, though the payee endorse it to another, without adding the words "or order," the bill continues negotiable in the hands of the endorsee, and his endorsement to the plaintiff is sufficient. Edie v. East India Co. 1 W. Bl. 295, Burr. 1216; Bayley on Bills, 4 edi. 105; Tindal, C. J. in Cunliffe v. Whitehead, 3 Bingh. N. C. 828, 32 Eng. Com. Law Rep. 344.
But in the case of a note endorsed by the payee not in blank, but to another or his order, an endorsement by the special endorsee is generally necessary. A greater negotiability may have been given to the instrument by a blank endorsement of the endorsee, yet if that negotiability was again restricted by the special endorsement of another endorsee, a person who after such special endorsement receives the note is bound to shew that he comes within the authority comprised in it; he must deduce a title under the person to whose order it is made payable by that last special endorsement; he cannot strike out such special endorsement, and claim a property in the note under the blank endorsement. Myers & Son v. Friend &c. 1 Rand. 12; 1 Bingh. N. C. 828.
In Virginia, as elsewhere, it is admitted that if the payee's endorsement be in blank, the holders are entitled not only to strike out the names of the endorsers, subsequent to the payee, but to write over the payee's name an assignment to themselves; or without writing such assignment, the bills will be considered their property by their holding them and having it in their power to write it. Ritchie &c. v. Moore &c. 5 Munf. 395.
In New York, a note payable at the Mechanics Bank was endorsed in blank by the payee. Over his name there was written afterwards, when the note was presented at the Mechanics Bank, "pay to the order of W. Fisk, Esq., Cashier." Fisk had no interest in the note; it was sent to him merely to collect, and not being paid he sent it back to the plaintiffs, and they struck out the transfer to him and made the bill payable to themselves. Their right to do so was sustained. Bank of Utica v. Smith, 18 Johns. 239.
5. What sort of interest in the bill plaintiff must have.
The endorsee of a bill has a right of action on the custom of merchants, independently of any statute. Ridgway v. Farmers Bank, 12 S. & R. 266.
In New York, where a note endorsed in blank was delivered to T. L. & Co. as security for a debt due them, and the blank was filled up before the trial with the words "
pay the contents to T. L.," it was considered that the owner had a right to fill up the blank with what name he pleased; and the action in the name of T. L. alone was sustained. Lovell v. Evertson, 11 Johns. 52. The beneficial owner of a bill of exchange or negotiable note, which is payable to bearer, or is endorsed in blank, may, says Walworth, Chan., institute a suit thereon in a court of law, in the name of any one who is willing to allow his name to be used for that purpose; and where the defendant has no legal or equitable defence to the bill or note, as against the real owner thereof, he cannot be permitted to shew that the nominal plaintiff, in whose name the suit is so brought, is not the real party in interest. ton v. Rogers, 14 Wend. 580. Decisions on similar principles have been made in Massachusetts and Pennsylvania. Little v. O'Brien, 9 Mass. 423; Sterling v. Marietta Co. 11 S. & R. 181.
But in England the rule is rather stricter. True it has even there been said that an endorsement in blank gives a joint right of action to as many as agree in suing on the bill; and that if, by virtue of such endorsement, two or more sue, it is not necessary for them to shew that they were in partnership. Ord &c. v. Portal, 3 Camp. 239. But if the defendant shew that the bill, at the time of being endorsed in blank, was delivered to a firm, it is considered that the right to sue is in the firm; and that if the firm consist of three partners, all living when the action is brought, that action should not be in the names of only two of the partners. Mackell &c. v. Kinnear, 1 Stark. 499; 2 Eng. Com. Law Rep. 484.
As a person who has no interest in, or possession of, a bill cannot maintain an action upon it, it is a valid defence that the bill was not endorsed to the plaintiff, and that he is not the holder of it. Emmett v. Tottenham, 8 W. H. & G. 884. In Maryland, as in England, it is considered that there can be no right of action in one who has no interest in the bill, either as holder or owner. Whiteford v. Burckmyer &c. 1 Gill 147. When on a note there was a special endorsement by the payee, assigning the note to J. H. L. & Co., and an