November 18, 1809. June Term 1811, the plt. recovered CH. 20. judgment against the makers, sued out execution and com- Art. 14. mitted one of them to prison; execution was returned without any satisfaction but this commitment. Alias and pluries issued against the other maker and estates of both, these not satisfied. September 19, 1812, one Brooks engaged to pay the execution, thereon the goaler released the one committed, and afterwards offered the money he had received to one Richardson, assignee of the judgment, who refused to accept it. Judgment for the plt., and held the judgment against the makers had not been satisfied; that is, no valuable satisfaction accepted by the plt. or any one authorized to receive payment, and to discharge the plt's. demand, so the case of Gilmore v. Carr was not applicable. Here was evidently a fair leaning in the court to get round a very exceptionable decision given in that case, contrary to all the English decisions in like cases; for when the law itself authorizes one to bring several actions at once, as against principal and sureties in a bond, or against the maker and the endorsers of a note, and to incur costs in three several actions, what good reason can be given if he accepts his debt of one and his costs, he should not only lose his costs against the others, but even have to pay them costs, when this very acceptance may be fairly construed to prevent further costs and to settle the debt, and not to oblige the plt., not only to lose costs legally incurred or created, but to pay costs in actions legally commenced, and carried on at the costs of the several defts., and on the very terms of their several contracts. Here the debtor committed, though discharged by the officer, was not discharged by the consent of the creditor; so no bar to pursuing another debtor for the same debt. Costs in all, in New York, 8 Johns. R. 356. So in Pennsylvania. 2 Dallas 115. Blank endorsement. One Violett wrote his name on a blank paper, meaning one Brookes should make his note on the other side to Patton; this was done, and held Violett was liable as endorser, even on the laws of Virginia, which generally put promissory notes on the ground of bonds rather than inland bills. 5 Cranch 142, Violett in error v. Patton. ART. 14. Blank endorsements, forged bills, and fictitious 1 W. Bl. 390, payees. 1. If the drawee of a forged bill accept and pay it Price v. Neal. -Chitty 235. to, or pay it only to a bona fide purchaser, he cannot recover back the money paid to such purchaser. As explained Ch. 9, a. 14; Ch. 20, a. 8, bearer. 2. A bill drawn in favour of a fictitious payee is a forgery. 3 T. R. 174, In this case the deft. and others drew a bill on the deft. alone, v. Harris. 182, Tatlock in favour of fictitious persons, which was known to all parties, and the deft. drew the bill payable to Gregson & Co., ficti CH. 20. tious payees, at the request of Potter, and endorsed the bill, Art. 14. by writing Gregson & Co., to Lewis & Potter, who endorsed 3 T. R. 481, Minet v. Gib son & al.Imp. 414, 192, 400. Dougl. 514, 1 H. Bl. 313, Emett. it to the plts., and the deft. received the value from the second endorser. Adjudged that a bona fide holder may recover on this bill against the deft. on the ground, that " giving such a bill is, as it were, an assignment of so much property, which becomes money had and received to the use of the holder of the bill." Judgment for the plt. This could be the case only among those privy to the facts. 3. The court held, that if a bill be drawn in favour of a fictitious payee, and the acceptor and drawer do know it, and the name of such payee is endorsed on the bill, an innocent endorsee may recover on it, giving a valuable consideration, against the acceptor of the bill payable to bearer. 4. A blank endorsement on a blank note or paper, binds the endorser. It is as a letter of credit for any indefinite sum. And for money lent a bill or note is good evidence, and the 3 & 4 of Anne only gives an additional remedy; an endorser is liable for money lent. Endorsees against the drawer of a bill of exchange; six Coles & al. v. counts. A signed his name to a blank paper duly stamped, and delivered it to B, for the purpose of drawing a bill of exchange on it in such manner as B might think best. B drew a bill payable to George Chapman, a fictitious payee, or order, and endorsed it over to C for a valuable consideration, who was ignorant of the transaction. Held, C, the innocent endorsee, could maintain an action against A, as the drawer of a bill payable to bearer, on a count to that effect; or that C might recover on a count stating the special circumstances of the case, if that count do not vary from the verdict; and when all parties know a bill cannot be legally endorsed, it may be used by an innocent holder for a valuable consideration, as a bill to bearer. See also 2 H. Bl. 187, 211, 288, 298; 3 D. & East 281; 1 H. Bl. 569, 625; 2 Show. 235; Sayer 223; 1 Burr. 452. The bearer must prove the maker's signature, and that of each endorser he claims under, 2 Phil. Evid. 15, 16, and recognises Grant v. Vaughan as to lost notes &c. 2 Wash. 164. 5. In this case Timothy Parsons wrote his name on a Sumner v. piece of paper, and gave it to John Brown; but there was no Parsons, S J. Court, evidence of the intent, or of any connexion in business between Lincoln, July them. John Brown made a note on the other side of the pa per, in these words : 1801. See Dougl. 51. H. BI. 313. "Boston, April 18, 1796, for value received I promise to Jesse Sumner or order 1843 dollars, on demand with pay interest. JOHN BROWN." 113.-Chitty May 16, 1796, Jesse Sumner received $450 10 of John 104, Brown, in part of the note, and endorsed this sum on it. Jesse Sumner then got a writing in these words, over the name of Timothy Parsons, to wit: "In consideration of the subsisting connexion between me and my son-in-law, John Brown, I promise and engage to guaranty the payment of the contents of the within note on demand," and then sued Timothy Parsons, declared on the promise, specially stating it and the note; but did not aver any demand on John Brown or notice to Parsons. In two trials in the Supreme Judicial Court of Massachusetts it was held, that Parsons was liable, and that Sumner had a right to fill the endorsement, so as to make Parsons a common endorser of the note, with the rights and obligations of such, or a guarantor, warrantor, or surety, liable in the first instance, and in all events as a joint and several promiser would be. It must be admitted, that this case was carried as far as any case had gone, and on the review the court was not unanimous, and it has since been questioned. Blank endorsement on a blank piece of paper &c. 5 Cranch, Violett v. Patton 142, 154, similar case. CH. 20. Young. 6. One Christian at Dunkirk drew a bill on the deft. in 4 T. R. 28, London for £90, payable to Henry Davis or order. Another 33, Mead v Henry Davis got the bill and endorsed it to the plt. The 2 Phil. Evid, court held, that this endorsement was a forgery, and that the 31. plt. could not recover against the acceptor; for the plt. must prove, according to his declaration, that Henry Davis, the true payee, endorsed the bill; whereas he did not endorse it, but a stranger did endorse it, and his being of the same name makes no difference. Lord Kenyon contra. 7. See the case of a blank endorsement &c., Josselyn v. 4 D. & E. 320. Ames, ante, article 7, this chapter. Altering the date of a bill, see Masters v. Miller. -5 D. & E. 367. Tuttle. 8. A gave a note to B to pay $100 in sixty days; B, the 4 Mass. R. promisee, contracted not to demand it under ninety days; B 414, Dow v. may sue it in sixty days; his promise not to demand it under ninety days was a collateral promise, for the breach of which A might have a separate action if there was a sufficient consideration, but it varied not the note. Bennet v. § 9. If a bill be payable to a fictitious person or his order, Chitty 1, it is not payable to the order of the drawer or bearer, unless the acceptor know the payee is a fictitious person. 109. 10. If the endorsee of a bill sue the acceptor, and he can- 1 H. Bl. 569, not prove an endorsement by the payee, he may prove the Chitty 84, payee a fictitious person, so could not endorse. Held, as drawer and acceptor knew this, the bill should operate against them as a bill to bearer, and the holder sue as bearer. ART. 15. Endorsers, how liable, and amount &c. § 1. An Skin. 343. endorser is liable to every subsequent endorsee, not to any pre- 410-4 T. R. 470.-Salk. 125, 133, 127.—5 Com. D. 88.-3 Salk, 68. CH. 20. ceding one, except as in article 6; though the bill be payable Art. 15. to B or bearer; for every endorsement makes a new bill, and also though the bill was forged, for the endorsement charges the endorser, and hence the drawer's fraud need not be proved, and the endorsement is a new contract. 2 Stra. 1087, Collins v. Butler. 2 Burr. 669. -Phil. Evid. 43. Stra. 1246, Imp. M. P. 409. 2 Atkyns 181, Haly v. Lane. 5 Com. D. 94. 2 Bl. Com. 469, 470.Salk. 127, 128. 2. The endorser cannot be charged with the payment of the note till there has been a demand on the maker, or an attempt to find him, made; (see Heylen v. Adamson, Burr. 669,) for here the drawer or maker of the note is the real debtor, as the acceptor of a bill is. The case of Heylen v. Adamson, by the endorsee of a bill against the endorser in which it was held, a demand on the drawer of the bill was not necessary for the reason above stated; I Stra. 515, Lawrence v. Jacob 441. 3. If the endorser pay part of the note, he thereby acknowledges his liability, and no demand on the drawer is necessary on this account also. The idea formerly adopted, that if the endorsee received part of the drawer, the endorser was discharged, is not now law. 2 Stra. 1245, Kellisle v. Robinson. 4. If the drawer be sued by the endorsee, and his bail pay the money and costs, this discharges the endorser as much as if the drawer himself had paid it: and 1 Wils. 46. § 5. If an endorser have a note given to him by his wife or an infant, and endorse it, he is liable to pay it to the endorsee. So if only the last endorsee paid a valuable consideration for it. In an action against the endorser it is necessary to prove his hand, not the maker's of the note. 2. It is necessary to prove a demand on the drawee of the bill, or maker of the 12 Mod. 244, note, or that he was sought for and could not be found. 3. Lambert v. That this was done in convenient time after the assignment. Raym. 443. 4. It is fair to give notice. 5. The demand must be after 2 Stra. 1087. the endorsement. 6. If one endorse blank, the endorsee may use it as an acquittance, or as an assignment to charge the endorser. Oaks.-1 Ld. Chitty 223, 6. If a note be made by a minor, so voidable as to him, Woodhouse yet the endorser is held, and the minor when of age may by 24, 25. express promise make the note good, though not by bare acknowledgment or paying part, and though the endorsement of a feme covert is void, the holder may sue any after party. See Ch. 90, a. 10, as to evidence in relation to negotiable debts. § 7. The endorsement of a bill or note is a new substantive promise or contract. 2. And when the endorser of a foreign bill of exchange is sued by the endorsee, he is liable to damages according to the law of the place where the bill was endorsed. 3. In debt against him on the act of Virginia, the declaration must aver notice of the protest for non-payment. 6 Cranch 221, Slacum v. Pomery. Dougl. 679. -Rev. Code p. 121. 4. And a defect in the declaration sufficient to arrest the judgment, may be alleged, as an error in the court in which error is brought. This action was on the act of Virginia, the deft. endorsed the bill in Alexandria, drawn abroad. CH. 20. Art. 15. v. Lenox. This act provides, "that when any bill of exchange is or 1 Cranch shall be drawn for the payment of any sum of money in which 194, Wilson the value is or shall be expressed to be received, and such bill See Ch. 139, is or shall be protested for non-acceptance or non-payment, a. 8, s. 14. the drawer or endorser shall be subject to fifteen per centum damages thereon, and the bill shall carry an interest of five per centum per annum from the date of protest, until the money therein drawn for shall be fully satisfied and paid." "And that it shall be lawful for any person or persons, having a right to demand any sum of money upon a protested bill of exchange, to commence and prosecute an action of debt for principal, damages, interest, and charges of protest, against the drawers and endorsers jointly, or against either of them separately; and judgment shall and may be given for such principal, damages, and charges, and interest upon such principal after the rate aforesaid to the time of judgment, and for interest upon the said principal money recovered after the rate of five per centum per annum, until the same shall be fully satisfied." al. v. Man case in Chan 8. This also was a case of an endorser in Virginia, in 5 Cranch error from the Circuit Court in the district of Columbia; and 322, Riddle & held, the endorsee of a promissory note may recover the deville.amount from a remote endorser, in equity, though not at law. Jameson's But second, equity will make that party immediately liable, cery. See 4 who is ultimately liable at law. Third, in equity the remote Cranch 241. endorser has the same defence against the remote endorsee, as against his immediate endorsee. Fourth, the deft. has a right to insist that the other endorsers be made parties. One Gray gave the note to M. & J., March 2, 1798, for $1500, payable to them or order; they endorsed it in blank. On the face of the note it was declared to be negotiable in the bank of Alexandria. Gray put it into a broker's hands, who passed it to one Scott for flour, he sold for £1200 in cash, and paid the money to Gray. Scott passed it, without endorsing it, to M'Clenachen in the purchase of flour, and he endorsed to Riddle & Co. in payment of a precedent debt. Gray failed to pay, and was discharged by the insolvent act of Virginia, in the complainant's suit on the note. They then sued the defts. at law on their endorsement, and got judgment below, reversed above, on the ground an endorsee cannot have an action at law against a remote endorser of a promissory note; therefore they brought this bill in equity, dismissed below, on the ground there was no equity in the bill; they appealed. The Cranch 181, 193, 367, 1 Cranch 290.-See a., 20. 47. |