the defendant, and by him indorsed again to the plaintiff and Brookes, they could not have sued the defendant as indorsee, because he in his turn might have sued them in the same character. In what capacity is the defendant liable upon the bill? He is a mere stranger to it, and has neither property nor the power of transferring the property in it. He puts his name upon it. That act confers no title upon any one, and imposes no liability upon the defendant.

LORD LYNDHURST, C. B. The indorsement of this bill by the defendant gave it all the effect of a new instrument as against him, though it did not in fact create a new instrument. It was competent to Brookes & Penny to strike out their own indorsement, and then the bill would have stood as a bill indorsed by the defendant in blank. This would not have prejudiced any other party. The bill was their property; and the indorsement, whether general or special, might be struck out.

PARKE, B. Every indorser of a bill is a new drawer, and it is part of the inherent property of the original instrument that an indorse ment operates as against the indorser in the nature of a new drawing of the bill by him. Still it remains the same instrument as before, and does not require a fresh stamp, for it is not a fresh instrument. It is urged that the defendant when he indorsed the bill had no property in it; but that is not necessary in order to render him liable to be sued upon the bill. Suppose that a man steals a bill and indorses it for value, might it not in pleading be stated that he drew the bill? The indorsement by the defendant was equivalent to the drawing of a new bill, and was intended to transfer that new bill to the plaintiff and Brookes. It has been argued that the case may be treated as if the defendant was the indorsee of the plaintiff and Brookes, and as if he had again delivered the bill to them; and it is said that in such a case, to avoid circuity of action, the plaintiff ought not to be suffered to recover. But the fact was not so. The defendant never was the indorsee of the plaintiff and Brookes, nor was it ever intended to convey the property in the bill to him.

ALDERSON, B. The indorsement only operates as against the party making it, and then as a fresh drawing. It has no operation with regard to the other parties to the bill.

GURNEY, B. I am of the same opinion.

Rule refused.

1 Conf. Allen v. Walker, 2 M. & W. 817; Burmester v. Hogarth, 11 M. & W. 97; Lawrence v. Oakey, 14 La. 886.-ED.

The cudorser cia note abead - pay co

is not a new WILLIAM GWINNELL v. EDWARD HERBERT. maker as in case of IN THE KING'S Bench, June 11, 1836.

a will, but a guarantor.

[Reported in 5 Adolphus & Ellis, 436.]

ASSUMPSIT. The declaration stated that the defendant on, &c., made his promissory note, and thereby promised to pay the plaintiff £7 128. 6d., one month after date, which period had elapsed. There was also a count on an account stated. Pleas: that defendant did not make the said note in manner, &c., concluding to the country; and, as to the account stated, the general issue. On the trial before the under-sheriff of Gloucestershire, Feb. 19, 1836, the note was put in. It was payable to William Gwinnell, or order, signed Herbert Herbert, and indorsed, in the defendant's handwriting, E. Herbert. Under that name was written William Gwinnell. The note had an eighteen-penny stamp. The under-sheriff objected that Edward Herbert, not being named on the face of the note, but on the back as an indorser, he was not maker, as stated in the declaration. For the plaintiff, Penny v. Innes was cited. No notice of dishonor was proved to have been given to Edward Herbert. The under-sheriff stated to the jury that, on the authority of the case cited, Edward Herbert must be considered as a new maker; and that, as against a maker, notice of dishonor was unnecessary. The plaintiff had a verdict; but the under-sheriff certified (under Stat. 3 & 4 Will. IV. c. 42, § 18) to stay judgment till a new trial could be moved for. Busby, in the ensuing term, moved for a new trial, on the grounds that, assuming an indorser to stand in the situation of a new maker, he was not to be described in pleading as the maker, and that he was not in effect a maker. A rule nisi was granted.

R. V. Richards now showed cause. The under-sheriff's ruling, on the authority of Penny v. Innes, was right. In that case, a bill drawn by Wilson, payable to his own order, and by him especially indorsed to Brookes and Penny, was next indorsed by Innes, and then by Brookes and Penny. Lord Lyndhurst there said: "The indorsement of this bill by the defendant gave it all the effect of a new instrument as against him, though it did not in fact create a new instrument. It was competent to Brookes and Penny to strike out their own indorsement; and then the bill would have stood as a bill indorsed by the defendant in blank. Plimley v. Westley' may be mentioned as a contradictory authority; but there the note was not payable to order. Here, the instrument being negotiable, a new

1 2 New Ca. 249.

stamp was not necessary to render the indorser liable as a new maker. The note was a new instrument in some respects, but not in all. If a party is possessed of a note or bill without proper title, and transfers it, he is liable; because the law will not allow him to say: "I have no title, and therefore my indorsee can have none against me." [PATTESON, J. Every indorser of a bill may be a new drawer; but the maker of a promissory note is an acceptor.] Unless the defendant here can be sued as maker, there is no remedy: he ought not to be discharged merely because a person who ought to have indorsed has omitted doing so.

Busby, contra. By the custom of merchants, the indorser of a note stands in the place of the drawer of a bill, as is said in Heylyn v. Adamson; but he is never declared against as a drawer in fact. As to the maker of a note, Lord Mansfield observes, in the case just cited, that he is an acceptor, not a drawer; and that, when the note is indorsed, the indorser stands in the situation analogous to that of drawer of a bill. He could not, indeed, stand in the situation of acceptor, because then he and the maker would both fill that character; and there cannot be two acceptors. Jackson v. Hudson. It is not necessary, therefore, to call in question the authority of Penny v. Innes. Here the defendant might have been sued upon the original consideration. But, if sued upon the note, he should have been declared against as indorser; in which case, it would probably have been held that he was estopped from setting up as a defence the want of an indorsement to himself.

LORD DENMAN, C. J. The under-sheriff has acted upon a misapplication of Penny v. Innes. The law there laid down as to the effect of indorsement might be correct as to a bill of exchange, but does not apply to a promissory note. The judgment of Tindal, C. J., in Plimley v. Westley,' seems intended not to overrule any thing laid down in Penny v. Innes, but to be consistent with what was there decided.

LITTLEDALE, J. The declaration here charges Edward Herbert as the maker of the note. It must be taken that, in point of fact, the note was made by Herbert Herbert. Then the question is, whether he is discharged, and a new instrument created, by Edward Herbert's name being put on the back of the note. I cannot understand how that should be so. It is said that, in the case of a bill of exchange, every indorser is a new drawer. But even that requires qualification. Bills are drawn according to the custom of merchants all over the world; and merchants would be much surprised at being told that an indorser might be considered a new drawer in all respects. It may be correct to say that an indorsement of a bill is in the nature of a new drawing.

not good

But, supposing the indorser of a bill to be strictly in the situation of a drawer, it does not follow that the indorser of a note is a maker. The drawer of a bill is liable only after presentment to the acceptor; but the maker of a note is in the situation of acceptor. In this case, therefore, it cannot be said that the indorser became a maker, or that the putting of Edward Herbert's name on the back of this bill had, for the present purpose, cancelled the engagement of Herbert Herbert. The observation which has been referred to - of Lord Ellenborough, in Jackson v. Hudson appears to me correct.

1

PATTESON, J. The issue here is, whether or not the defendant made the note. There is no conflict between the cases on this subject. The whole question turns on the distinction between a bill and a note. On a bill, each indorser is a new drawer, as was stated in Penny v. Innes; but the drawer of a bill is liable only on default made by the acceptor. The maker of a note is liable in the first instance; and, if each indorser became a maker, he also would be liable in the first instance. There is a difficulty, therefore, in the case of a note, which does not exist in that of a bill. The point in Plimley v. Westley was, that the note not being on the face of it negotiable, the persons whose names appeared on the back were not indorsers, and might have been treated as makers, if the instrument had been properly stamped. Here the instrument was negotiable; so that the point discussed in Plimley v. Westley does not arise. This case is more like Jackson v. Hudson, where, the drawee having accepted a bill, and another person not a drawee having accepted it also, it was held that the latter could not be sued as an acceptor. So here the defendant was not a maker, but, as was said in that case, should have been declared against on his collateral undertaking. In the report of Plimley v. Westley, the Lord Chief Justice says, "that a bill or note cannot be enforced against the original maker by a person who takes by indorsement, unless the instrument contains words which authorize the indorsement." A proper distinction is there kept in view. Some confusion has arisen in many of the cases, from not attending to the distinction between a bill and a note. The rule must be absolute.

WILLIAMS, J., concurred.

1 2 New Ca. 249.

Rule absolute.'

2 1 Hodges, 325.

8 Thew v. Adams, 6 Up. Can. o. s. 60; Jones v. Ashcroft, 6 Up. Can. o. s. 164; West v. Bown, 3 Up. Can. Q. B. 290, 291; Fahnestock v. Palmer, 20 Up. Can. Q. B 307; Smith v. Hill, 1 All. (N. B.) 218, accord.-ED.

du indorsee, who
rein dorice back, cau
be sued as an indosser

WILDERS AND OTHERS v. STEVENS.

IN THE EXCHEQUER, FEB. 11, 1846.

ĮReported in 15 Meeson & Welsby, 208.]

1

•and he can not

set up his being mdcrice of thi

ASSUMPSIT by the indorsees against the indorser of a bill of ex

change. The declaration stated that T. & H. Wilders & Co., on, &c., painting. made their bill of exchange for £40 12s., payable to their order, and directed the same to one J. Heigham, &c.; that Wilders & Co. indorsed the same to defendant, and the defendant then indorsed the same to the plaintiffs. The declaration then averred presentment to and nonpayment by Heigham, in the usual terms.

Plea: that the said T. & H. Wilders & Co. are the plaintiffs, and no other persons; that the plaintiffs and no other persons are the makers of the said bill and the persons to whose order the same was payable, and the persons who indorsed the same to the defendant, and who are liable to the defendant as such indorsers, in the event of payment of the same by him. Verification.

Replication that before and at the time of the drawing and making of the said bill by the plaintiffs, and the indorsement thereof by the defendant, as in the declaration mentioned, Heigham was indebted to the plaintiffs in the sum of £40 12s.; and thereupon it was agreed between the plaintiffs and Heigham that, in consideration that Heigham would procure the defendant to indorse, and become surety as indorser to the plaintiffs of the said bill, the plaintiffs should give time to Heigham for the payment of the said debt of £40 128.; that the plaintiffs thereupon afterwards, in pursuance and performance of the said agreement, drew and indorsed the said bill as in the declaration mentioned, and that the defendant, for the accommodation of Heigham, indorsed the same to the plaintiffs, with the intent of thereby becoming surety as indorser to the plaintiffs of the said bill; that Heigham, after the said indorsement by the defendant, in further performance of the said agreement, delivered the said bill so indorsed by the defendant to the plaintiffs; that the plaintiffs, in performance of the said agreement, gave time to Heigham for payment of the said debt, and that no part thereof has been paid to the plaintiffs. Verification.

Special demurrer, assigning for causes that the replication admits the indorsement by the plaintiffs to the defendant, as in the plea mentioned; and that the plaintiffs were liable to the defendant thereon, and their promise thereby to pay him the amount of the bill, if the