bill; although he may in some cases incur a limited responsibility to the person to whom he immediately transfers it, founded upon particular circumstances, as, for example, upon his express or implied guarantee of its genuineness, and his title thereto." Story on Bills, § 200.

The defendant not being liable upon the notes as indorser thereof, it follows that the first count is bad, and the demurrer thereto was properly sustained.

Per Curiam. The judgment is affirmed, with costs.

James S. Jelley and William S. Holman, for appellants.
A. C. Downey and H. A. Downey, for appellees.1

1 Hopkirk v. Page, 2 Brock. 20; Hull v. Planters' Bank, 6 Ala. 761; Gookin v. Richardson, 11 Ala. 889; Borum v. King, 87 Ala. 606; Ryan v. May, 14 Ill. 49; Fortier v. Darst, 81 Ill. 212; Badgley v. Votrain, 68 Ill. 25; Keller v. Williams, 49 Ind. 504; Franklin v. Twogood, 18 Iowa, 515; Instone v. Williamson, 2 Bibb, 83 (semble), accord.

Jones v. Elliott, 4 La. An. 303; Mosely v. Graydon, 4 Strob. 7, contra.

Conf. Crutchfield v. Easton, 13 Ala. 337; Folger v. Chase, 18 Pick. 68; Crosby

. Boub, 16 Wis. 616; Chipman v. Tucker, 88 Wis. 48, 49.-ED.

SECTION III.

No One but the Payee or a Subsequent Holder can be an Indorser

BISHOP v. HAYWARD.

IN THE KING'S BENCH, Nov. 21, 1791.

[Reported in 4 Term Reports, 470.]

THE plaintiff declared on a promissory note, made by one Collins, payable to the plaintiff, or order, and afterwards indorsed by him to the defendant, who afterwards reindorsed it to the plaintiff again. After verdict for the plaintiff on the general issue, a motion was made by

Bower, in arrest of judgment, upon the ground that nothing appeared to be due to the plaintiff on his own showing; for the defendant would be entitled to recover back again the identical sum from the plaintiff for which he had now obtained a verdict against the defendant; and, therefore, as this would introduce a circuity of action, which the law does not permit, the declaration was bad face of it.

upon the Plumer, Lane, and Dauncey showed cause; contending that there was no instance of a judgment being arrested, because, prima facie, there might be a circuity of action. But the plaintiff is entitled to maintain his verdict, if nothing appear which is necessarily inconsistent with his demand; and, therefore, if any case can be stated where upon this record the plaintiff, according to justice and law, would not be bound to refund the money again, the court will presume, after verdict, that such a case was made out in evidence. Now, suppose it had happened that the plaintiff had refused to receive this note from Collins as a satisfaction for his debt, unless Hayward put his name upon it, to which Hayward had agreed, and had delivered it again to the plaintiff, his name as payee having been first indorsed upon it by way of form in this case, no doubt Bishop would be entitled to maintain his action as subsequent indorsee against Hayward; and yet Hayward could not have recovered the money again of him as prior indorser, on account of the agreement between them. That was this very case. The objection of circuity only holds where there is necessarily an equality of action. Moor, 23. But it does not necessarily follow that the plaintiff's recovering here will introduce a circuity of action. There

is nothing contrary to the law of merchants in a person's being the indorsee of a note which he had before indorsed. The indorsement is only prima facie evidence of consideration. It may be rebutted; and it might have been proved that the first indorsement to Hayward was without consideration, and the second for a good one. And this must have been proved; otherwise, the plaintiff could not have recovered a verdict. And, if the defendant had had a counter-demand upon the plaintiff, he should have pleaded a set-off; but it is not usual to state in the declaration whether the indorsement were with or with out consideration. This is a motion in arrest of judgment; and, after verdict, it must be taken that every thing was proved necessary to en able the plaintiff to recover. 2 Burr. 899. The effect of this verdict is not only that the plaintiff had a right, under the circumstances, to recover against the defendant, but also that the defendant could not recover the same sum back again from him upon the note.

LORD KENYON, C. J. It is an invariable rule that every plaintiff must, on his own stating of the case, show sufficient to entitle him to recover judgment against the defendant; and it is a rule equally clear that every instrument ought to be declared on according to its legal import. I do not say but that there may be circumstances which, if disclosed on the record, might entitle the plaintiff to recover against the defendant on this note; but we are now called upon to form a judgment on the title which he has disclosed; and, on the face of the declaration, he has stated the note as a legal existing note, and the indorsements as legal existing indorsements. We are therefore bound to consider them to be so. Then the case stands thus: that he, the plaintiff, being the original indorser of the note, calls on the defendant, who appears on the record to be a subsequent indorsee. And nothing can be clearer in law than that an indorsee may resort to either of the preceding indorsers for payment: whereas the present action is an attempt to reverse this. I admit that a case might happen in which the plaintiff might have stated that he was substantially entitled to recover on this note, e. g., that his own name was originally used for form only, and that it was understood by all the parties to the instrument that the note, though nominally made payable to the plaintiff, was substantially to be paid to the defendant; but, if such were the case, the note should have been declared on according to its legal import, as was held in Minet v. Gibson. A name may be omitted in the declaration, if the legal operation of the instrument requires it. But, in this case, the plaintiff has stated facts subversive of his title.

BULLER, J. The consequence of supporting this judgment would

1 8 T. R. 481; H. Bl. Rep. 569.

be, that the plaintiff, without having any real demand on the defend-
ant, may recover against him by the judgment of the court, without
allowing to the defendant a possibility of defending himself. For, on
the trial, it was only necessary for him to prove that the note in ques-
tion was given, as stated in the declaration, payable to the plaintiff;
that it was indorsed by him to the defendant, and by him reindorsed
to the plaintiff. The defendant cannot deny these facts; on proving
which, the judge at nisi prius was bound to say that he was entitled
to recover, because he had proved the whole of his declaration.
Then, having obtained a verdict, he comes to this court, and relies on
that verdict as conclusive that he has a cause of action, on the ground
that this court must presume after verdict that, if the case supposed
by the plaintiff had not been proved, he could not have recovered at
nisi prius. But, on a motion in arrest of judgment, we are bound to
look at the title which the plaintiff himself has stated, beyond which
no presumption can be admitted. The cases of presumption alluded to
are where the plaintiff has stated a case defective in form, not where
he has shown a title defective in itself. The case commonly put of a
presumption after verdict is where a feoffment is pleaded without liv-
ery; there a livery is implied as making a part of the feoffiment. But
if the title be defective on the face of it, the court cannot sustain the
judgment. There is no foundation for the argument relative to the
set-off; for the statutes only enable a defendant to set off one debt
against another.
Per Curiam.

Judgment arrested.

JOHN PENNY, SURVIVING PARTNER OF ROBERT BROOKES,
v. JOHN ROSE INNES.

IN THE EXCHEQUER, MICHAELMAS TERM, 1834.

[Reported in 1 Crompton, Meeson, & Roscoe, 439.]

ASSUMPSIT on a bill of exchange. The first count stated that one William Wilson made his bill of exchange, and thereby requested Henry Wilson & Co., twelve months after date, to pay to his (W. W.'s) order the sum of £200. It then stated an indorsement by W. W. to the defendant, and an indorsement by the defendant to the plaintiff and Robert Brookes. The second count stated the making of the bill as in the first count, and an indorsement by the defendant to

Vide Bull. N. P. 320; Rep. temp. Hardw. 118.

་་་

the plaintiff Brookes omitting the statement of the indorsement by W. W.). The third count stated that the defendant drew the bill upon the same drawees, payable to his own order, and that he indorsed it to the plaintiff and Brookes. The fourth count stated that the defendant drew the bill upon the same drawers, payable to the order of W. W., and that W. W. indorsed it to the plaintiff and Brookes. The fifth count stated that W. W. drew the bill upon the same drawees, payable to his own order, and indorsed it to the plaintiff and Brookes, who delivered the bill to the defendant, who then and there indorsed and delivered the same to the plaintiff and Brookes. The declaration also contained a count for goods sold and delivered, and the usual money counts. Plea: the general issue. On the trial before Parke, B., at the London sittings after last Trinity term, the bill upon which the action was brought appeared to be in the following form:

"£200 0s. Od.

9th SEPT., 1829.

"Twelve months after date, pay to me, or my order, the sum of two hundred pounds, for value received.

"Messrs. HENRY WILSON & Co.,

"Pedlar's Acre, Lambeth."

(Indorsed)

"Pay Messrs. Brookes & Penny, or order.

"WILLIAM WILSON.

"WILLIAM WILSON.
"JOHN ROSE INNES.
"BROOKES & PENNY."

It appeared in evidence that the defendant had indorsed his name upon the bill after the special indorsement by William Wilson, the payee, to the plaintiff and Brookes, and before the indorsement by the latter, and it was objected that this indorsement gave no title to the plaintiff and Brookes to sue the defendant on the bill; but the learned Baron thought that the indorsement amounted to a fresh drawing, and the plaintiff had a verdict. No question arose with regard to the consideration for the defendant's indorsement.

Platt now moved for a rule to show cause why the verdict for the plaintiff should not be set aside, and a nonsuit entered, or a new trial had. The question is, whether the defendant, by putting his name on the back of the bill immediately after the special indorsement, and before the indorsement by the special indorsees, rendered himself liable as a new drawer; and, if so, whether the bill did not require a fresh stamp. The defendant conveyed no interest in the bill by his indorsement. Had it been indorsed by the plaintiff and Brookes to