appointed nis then wife, to wit, one Jane Harries, executrix thereof, who, after the death of the said H. Lloyd Harries, to wit, on, &c., 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, &c., 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 de. fendants 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.

Phipson, in support of the demurrer. The plaintiffs have no title to sue on the note. An indorsement consists of two things; namely, the writing on the note of the name of the party transferring it, and of a delivery for the purpose of completing such transfer. Marston v. Allen. In the present case, the testator wrote his name on the note, but did not deliver it; the executrix has delivered the note without indorsing it. The indorsement by the testator was a mere inchoate act, which could not be rendered complete by the subsequent delivery of the executrix. [PLATT, B. In Rex v. Lambton,' Wood, B., says: "It is clear that a special indorsement does not transfer the property in bills until they are delivered over."] Suppose the testator had sealed a bond, and died without delivering it, a delivery by his executrix would not render it the deed of the testator. [ALDERSON, B. In Adams v. Jones, Lord Denman, C. J., says, "A bill may be ndorsed to a party in two ways, either by special indorsement, making it payable to that party, or by a blank indorsement, and delivery to that party. In the latter way, at all events, if not in the former, the bill must be delivered to the party as indorsee, in order to constitute an indorsement to him."] An indorsement of a bill by an executor, with delivery, will not bind the assets of the testator. Child v. Monins. A fortiori delivery, without indorsement, cannot do so. The court called on

Keating to support the declaration. First, upon general demurrer, there is a sufficient allegation of the transfer of the note. The declaration alleges that the executrix, for good and valid consideration to her as executrix, transferred the note so indorsed to the plaintiffs, to wit, by delivery thereof to them by her, as such executrix as aforesaid. That allegation is tantamount to a legal indorsement by the executrix.

ALDERSON, B. The promise alleged in the declaration is to pay aocording to the tenor and effect of the said indorsement.] If a legal transfer can only be made by the party writing his name upon and delivering the note, then, upon general demurrer, such must be taken to be the meaning of the word "transferred." [ALDERSON, B. The true construction of the declaration is this: that the executrix transferred the note "being so indorsed as aforesaid ;" that is, indorsed by another person.] The videlicet does not control the operation of the word "transfer," or render material the mode in which it is alleged to have been made. Hammond v. Colls. A "transfer" may mean either an indorsement or assignment; which latter word is used in the Statute 3 & 4 Anne, c. 9. If the defendant had pleaded by denying the transfer modo et forma, and that issue had been found against him, he could not after verdict have taken advantage of any ambiguity in the declaration.

Secondly, even if it be taken on the face of the declaration that there was a mere writing of his name by the testator, and a delivery by the executrix, such transfer would pass the property in the note, and entitle the plaintiffs to sue upon it. Where a testator has delivered a note without indorsement, an indorsement by his executor is equally valid as if made by himself. Watkins v. Maule. [ROLFE, B. That case only decides that where a party delivers a note for a valuable consideration, without indorsement, he creates an equitable, not a legal title; and the holder, having an equitable right, is entitled to call on the executor of the party who delivered it to give a formal transfer.] If a note is transferred without indorsement before bankruptcy, the holder may call on the bankrupt or his assignees to indorse it. Smith v. Pickering, Arden v. Watkins. There are many instances in which an executor may adopt and ratify the acts of his testator. A cognizance by a defendant, as bailiff of an executor, for rent due to the testator, is supported by proof of a distress by him in the name of the testator, and by his direction, but after his death; such distress, though made before probate, having been afterwards adopted and ratified by the executor. Whitehead v. Taylor. In that case, Lord Denman, C. J., says, “The law knows no interval between the testator's death and the vesting of the right in his representative." An executor is not in the situation of a mere agent, but his acts are identified with those of his testator.

Phipson, in reply, was stopped by the court.

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 teststor "or order;" that means order in writing. The testator has writ ten 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.

Au indorsement is

not an indesinent

of

BUCKLEY v. HANN.

[Reported in 5 Exchequer Reports, 43.]

mitil delivery O! IN THE EXCHEQUER, FEBRUARY 8, 1856. The fill the the inflowce.

indorser

THIS was a rule calling on the plaintiff to show cause why a sug gestion should not be entered on the roll to deprive the plaintiff of costs, under the London Small Debts Act, 10 & 11 Vict. c. 71.

It appeared from the affidavits that the action was by the indorsee against the acceptor of a bill of exchange, drawn by one E. Wood, and by him indorsed to the plaintiff, and was tried before the Secondary of London, under a writ of trial, when a verdict was found for the plaintiff for £12 48.2 The plaintiff resided at Edmonton, in the county of Middlesex; and the bill in question was drawn and accepted, and Wood put his name upon it, at the office No. 70 Lower Thames Street; and it was then sent by a messenger to the residence of the plaintiff, who received it there.

J. Brown, in last Michaelmas term (November 26), showed cause. W. L. Thomas, in support of the rule. It is sufficient if any part of the cause of action arose within the city of London.

PARKE, B. The statute requires the cause of action

that is, the

▲ Clark v. Sigourney, 17 Conn. 511; Clark v. Boyd, 2 Oh. 279, accord. — ED. Only so much of the case is given as relates to the question of indorse - ED.

ment.

-

whole cause of action to arise in the city. In this case, it did not. Until the bill was delivered to the plaintiff, no cause of action arose from the indorsement to him. Upon the other point, we will take time to consider. Cur, adv. vult.1

1 Mott v. Wright, 4 Biss. 58, accord.—

CHAPTER IV.

TRANSFER.

SECTION I.

Negotiable Bills and Notes.

HODGES v. STEWARD.

IN THE KING'S BENCH, EASTER TERM, 1691.

[Reported in 1 Salkeld, 125.]

IN an action on the case on an inland bill of exchange, brought by the indorsee against the drawer, these following points were reSolved:

1st. A difference was taken between a bill payable to J. S. or bearer and J. S. or order; for a bill payable to J. S. or bearer is not assignable by the contract so as to enable the indorsee to bring an action, if the drawer refuse to pay, because there is no such authority given to the party by the first contract, and the effect of it is only to discharge the drawee, if he pays it to the bearer, though he comes to it by trover, theft, or otherwise. But when the bill is payable to J. S. or order, there an express power is given to the party to assign, and the indorsee may maintain an action.1

2dly. Though an assignment of a bill payable to J. S. or bearer be no good assignment to charge the drawer with an action on the bill, yet it is a good bill between the indorser and indorsee, and the indor. ser is liable to an action for the money; for the indorsement is in nature of a new bill.

3dly. It being objected that in this case there was no averment of the defendant's being a merchant, it was answered by the court that the drawing the bill was a sufficient merchandising and negotiating to this purpose.

4thly. The plaintiff declared on a special custom in London for the

1 Jordan v. Barloe, 3 Salk. 67, accord.—ED.