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self or upon a paper attached thereto. The signature of the indorser, without additional words, is a sufficient indorsement." Gen. Stat. 1915, § 6558.

As the indorsement was written on the instrument itself, there was compliance with the requirements of the act, and the relation of Dobbins to the instrument, together with his signature, implied that he signed it as an indorser and not as a maker. Kistner v. Peters, 223 Ill. 607, 79 N. E. 311, 7 L. R. A. (N. S.) 400, and note, 114 Am. St. Rep. 362; 3 R. C. L. 969. If more was necessary to establish the relation of Dobbins to the note and the capacity in which he wrote his name on it, it is supplied by the placing of his name on the back of the instrument a few days after the first indorsement was made and long before it was due.

Complaint is made of the admission of testimony to the effect that Dobbins had signed his name on the note in the capacity of indorser with the intention of transferring the title of the note to the plaintiff. If there had been ambiguity as to the relation of Dobbins to the paper, oral evidence might have been admitted to show the intention of the parties and his real relation to the paper, but since the note itself implied that he was an indorser, no oral testimony was necessary, and since the oral testimony was consistent with the tenor of the note and the implied relation of Dobbins, no prejudice could have resulted from the testimony.

Some questions are raised as to the consideration of the note; but, the plaintiff being a holder in due course, it is deemed to have been issued for a valuable consideration, and, besides, the testimony shows a full consideration for the transfer, in that it was transferred in part for a pre-existing debt from Dobbins to plaintiff and for money paid to him. Gen. Stat. 1915, §§ 6551, 6552.

Although questioned, the transfer of the note from the plaintiff to the bank amounted to a commercial indorsement. It was an assignment without limitation and also as a guaranty of payment, and this has been held to pass title to the paper the same as a blank indorsement, as well as a guaranty of payment. The note being negotiable in form, the writing constituted a commercial indorsement which passed full title to the note free from equities as between the maker and the payee. Kellogg v. Douglas County Bank, 58 Kan. 43, 48 Pac. 587, 62 Am. St. Rep. 596; Farnsworth v. Burdick, 94 Kan. 749, 147 Pac. 863. The plaintiff being a holder in due course as the result of the original transfer, the subsequent holders acquired the rights of plaintiff, and took the note with like immunity from defenses, although some of the subsequent transfers may haye been made after the note became due. It has been decided that: "When promissory notes pass into the hands of an innocent holder for value before maturity all equitable defenses are cut off; and, although the assignee of such holder had notice of the original infirmities of the notes, he takes by assignment all the

rights of his assignor, and can recover on the notes whether he acquires them before or after maturity." Underwood v. Fosha, 96 Kan. 240, 150 Pac. 571.

The questions discussed were raised mainly upon the instructions of the trial court, and these have been met without quoting the instructions. challenged. It is enough to say that the defendant has no cause to complain of the instructions given, nor has he shown any substantial errors in the record.

The judgment is affirmed.

CLARK v. THOMPSON et al.

(Supreme Court of Alabama, 1915. 194 Ala. 504, 69 South. 925.) Suit by Ida Clark against W. A. Thompson and another for the cancellation of a mortgage. From a decree dismissing the bill, complainant appeals. Reversed and rendered.

SOMERVILLE, J. Complainant files her bill for the cancellation of a certain mortgage executed by herself and her husband on her realty to secure their joint negotiable note. The bill, alleges, and the evidence, we think, very clearly shows, that the money for which the note and mortgage were given was lent to the husband, not to the wife, and that her relation to the debt was that of a surety only. This was the finding of the chancellor, but the bill of complaint was dismissed on the theory that the respondent was a purchaser for value in due course of the note and mortgage, without notice of the infirmity charged.

Respondent bought the note and mortgage from the payee, W. A. Thompson; the note being payable to Thompson, or order. In order to free the note of the defense available to complainant against the payee, it was necessary for respondent to acquire it in due course by indorsement, as prescribed by the Negotiable Instruments Law. Code, §§ 5007-5014.

"The indorsement must be written on the instrument itself or upon a paper attached thereto." Code, § 4986. This is but a statutory affirmation of the rule of the old law merchant, which allowed indorsements to be made upon an "allonge"; that is, upon a slip of paper tacked or pasted on to the instrument so as to become a part of it. Crawford's Ann. Neg. Inst. § 690; Crutchfield v. Easton, 13 Ala. 337; Brown v. Isbell, 11 Ala. 1009, 1017. But the use of the allonge was allowable only when the back of the instrument itself was so covered with previous indorsements that convenience or necessity required additional space for further indorsements. Authorities, supra. Section 4986 of the Code sanctions the use of the allonge, but certainly it was not intended to establish the loose and undesirable practice of making regular indorsements of commercial paper by a writing on the back of any other paper or document to which it might be temporarily attached, SM. & M.B.& N. (2D ED.)-21

as by pinning, and, more especially, when there is ample space for indorsement on the back of the instrument itself.

In a case like this, arising under the law merchant, the Supreme Court of Nebraska has reached a like conclusion. Said the court: "Webster defines the word 'allonge' to mean 'a paper attached to a bill of exchange for receiving indorsements too numerous to be written on the bill itself.' In the case at bar the mortgage and note were not attached or fastened together; and, had they been, as there was plenty of room remaining blank on the back of the note for indorsement thereon, it would be forced and inadmissible construction to treat the mortgage as an allonge of the note." Doll v. Hollenback, 19 Neb. 639, 643, 28 N. W. 286, 288.

An exhaustive discussion of the subject, with citation of many authorities, will be found in the case of Bishop v. Chase, 156 Mo. 158, 56 S. W. 1080, 79 Am. St. Rep. 515, cited in 1 Words and Phrases, 343. It was there held that a written transfer of a note, made on a separate paper to which it was pinned, there being room on the back of the note itself for the transfer, was an assignment merely, and not a commercial indorsement.

In the instant case, whether the note was pinned to the mortgage or not, we are constrained to treat its transfer, in the manner shown, as a common-law assignment merely, and to hold that respondent was not a holder in due course. It must be noted, however, that the evidence does not show that the note was pinned to the mortgage when they were transferred to respondent, but only when they were delivered to the payee nearly a year before; and we could not presume that such a superficial fastening, evidently for temporary convenience only, still existed at the date of the transfer.

It results that the decree of the chancery court must be reversed, and a decree will be here rendered granting to complainant the special relief prayed for in the bill of complaint.

Reversed and rendered.

BARKLEY v. MULLER et al.

(Supreme Court of New York, Appellate Division, First Department, 1914. 164 App. Div. 351, 149 N. Y. Supp. 620.)

Action by Charles B. Barkley against Joseph H. S. Muller and others. From an order overruling separate demurrers to the complaint defendants appeal. Reversed, and demurrers sustained.

DOWLING, J. The complaint herein, after setting forth that the defendant Muller made his promissory note in writing on a certain date, whereby he promised to pay to the order of George B. Burch, at the Hudson Trust Company, in the city of New York, the sum of $2,500 four months after said date, further proceeds to allege: "That the defendants George B. Burch and Sarah M. Burch thereafter, and before maturity of said note, for value, indorsed the one-half interest therein to and delivered the same to this plaintiff, who is now the owner and holder thereof."

By section 62 of the Negotiable Instruments Law (Consol. Laws, c. 38) it is required that an indorsement must be of the entire instrument, and that an indorsement which purports to transfer to the indorsee a part only of the amount payable is declared not to operate as a negotiation of the instrument. By section 60 of the same law "negotiation" is defined as the transfer from one person to another of an instrument in such manner as to constitute the transferee the holder thereof. Where an instrument is payable to order, it is negotiated by the indorsement of the holder completed by delivery. By section 2 of the same law the holder is defined as the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. In King v. King, 37 Misc. Rep. 63, 74 N. Y. Supp. 751, affirmed 73 App. Div. 547, 77 N. Y. Supp. 40, appeal dismissed 172 N. Y. 604, 64 N. E. 1122, it was held that in an action at law upon a promissory note the obligation of the defendant is single, and cannot be divided into parts, and that only one action can be maintained for the debt in its entirety.

The present action being one at law, and containing no averments or prayer for relief appropriate in an action in equity, it follows that the complaint set forth no cause of action, and that the order appealed from should therefore be reversed, with $10 costs and disbursements, and the demurrers of the defendants sustained, with $10 costs, with leave to the plaintiff to serve an amended complaint within 20 days upon payment of said costs.

SECTION 3.-TRANSFER BY INDORSEMENT

I. BLANK AND SPECIAL INDORSEMENTS

BROMAGE et al. v. LLOYD et al.

(Court of Exchequer, 1847. 1 Exch. 32.)

Assumpsit. The declaration stated, that the defendants, on, etc., made their promissory note in writing, and thereby jointly and severally promised to pay one H. Lloyd Harries (since deceased), or order, £300. on demand, and then delivered the said note to the said H. Lloyd Harries, who then indorsed the said promissory note, but without making any delivery thereof: and afterwards, to wit, on, etc., the said H. Lloyd Harries died, having first made his last will and testament, in writing, duly executed and attested as by law required, and thereby appointed his then wife, to wit, one Jane Harries, executrix thereof, who, after the death of the said H. Lloyd Harries, to wit, on, etc., duly proved the said will and took upon herself the execution thereof and became and was sole executrix thereof; and she, as such executrix, afterwards, to wit, on, etc., for good and valid consideration to her as such executrix as aforesaid in that behalf, transferred the said note, so indorsed as aforesaid to the plaintiffs to wit, by delivery thereof to them by her as such executrix as aforesaid, of all which the defendants then had notice, and then, in consideration of the premises, promised to pay the amount of the same note to the plaintiffs, according to the tenor and effect thereof, and of the said indorsement and delivery. Breach, nonpayment.

General demurrer, and joinder.10

POLLOCK, C. B. This is an action on a promissory note, upon which a party has written his name, and after his death his executrix delivers the note to the plaintiffs without indorsing it; so that there is a writing of his name by the deceased, and a delivery by his executrix. Those acts will not constitute an indorsement of the note. The person to whom it is so delivered has no right to sue upon it. ALDERSON, B. The promissory note was made payable to the testator "or order." That means order in writing. The testator has written his name upon the note, but has given no order; the executrix has given an order, but not in writing. The two acts, being bad, do not constitute one good act.

ROLFE, B. The word "transfer" means indorsement and delivery. PLATT, B., concurred.

Judgment for the defendant.

10 Arguments of counsel are omitted.

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