transter. payable to bearer'; and if the first indorsement on a IV. Modes of bill or note be made in blank, it will, as against the payee, drawer, or acceptor, be assignable afterwards by mere delivery, notwithstanding subsequent indorsements in full having been made thereon 2. When a bill or note is payable to the order of the drawer, or of a third person as payee therein named, the name of such drawer or payee must appear in the first indorsement, whether such indorsement be intended to convey to the indorsee the absolute property in the bill or note, or merely to enable him to receive payment thereof, as agent of such indorser3; and although such indorsement is usually made by the drawer or payee writing on the back of the bill, yet may be made by writing on the face of it, for the writing on the face of a note is of the same effect as an indorsement, and is always accepted and taken as such by the courts of law + it ' Peacock t. Rhodes, Dougl. 611. 633. A bill was drawn by the defendant, payable to Ingham or order, Ingham indorsed it in blank, after which it was stolen; the plaintiff took it bonâ fide, and paid a valuable consideration for it, and acceptance and payment being refused, gave notice to the defendant, and brought this action. A case was reserved for the opinion of the court, and it was contended, that this bill was not to be considered as payable to the bearer, and the plaintiff had no better right upon it than the person of whom he took it; but the court said, there was no difference between a note indorsed in blank, and one payable to bearer, and the plaintiff had judgment. Francis v. Mott, at N. P. before Lord Mansfield, cited Dougl. 612. was a similar case, and the attorney-general, who was for the defendant, after attempting unsuccessfully to shew that the plaintiff knew the bill was obtained unfairly, gave up the cause. Smith v. Clarke, Peake 225. A bill was indorsed in blank by the payee, and after some other indorsements was specially indorsed in full to Jackson, or order; Jackson sent it to Mujr and Atkinson, but did not indorse it, and Muir and Atkinson discounted it with the plaintiffs. The plaintiffs struck out all the indorsements except the first, which continued in blank. This was an action against the acceptor, and it was objected that the plaintiffs could not recover without an indorsement by Jackson, but Lord Kenyon held otherwise, and the plaintiff recovered. The plaintiffs afterwards proved that Jackson desired Muir and Atkinson to discount this bill, but Lord Kenyon thought the plaintiffs' case made out without this evidence. 3 Barlow v. Bishop, 1 East. 432.-3 Esp. 266. S. C. IV. Modes of transfer. An indorsement made upon a bill or note thus, "I give this note to A." may be proved as testamentary, and is sufficient to transfer the property therein by the party making it'; but the mere circumstance of the payee putting a number or any private mark on a bill or note will not be equivalent to an indorsement. So where a party promised to indorse a bill, and upon the faith of such promise a stranger wrote an indorsement in the name of the party, it was considered that such indorsement was invalid 3. We have already seen that a bill of exchange may be drawn by an agent, so also it may be indorsed by a person acting in that capacity; in which case he must expressly indorse as agent, as, "E. F. per proc. A. B." or he may write the name of his principal, otherwise the indorsement would be inoperative 4. In the negotiation of bills it frequently happens that parties who are employed merely as agents are obliged to indorse them for the purpose of transmitting them to their principals, and if such indorsement be written unconditionally, the agent (though he have no interest whatever in the transaction 3) will be liable to pay the amount of the bill; and therefore to exempt themselves from responsibility it is necessary in such case to specify in the indorsement, that he makes it without intending to incur personal responsibility for the payment, which may be effected by adding the words sans recours' which operates as a special indorsement, and is a notice to subsequent parties taking the bill that such persons are acting only as agents. 'Per Lord Chancellor, in Chatworth v. Leach, 4 Ves. jun. 565. Fenn v. Harrison, 3 T. R. 757.-Ex parte Shuttleworth, 3 Ves. 2 jun. 368. 3 Moxon and another v. Pulling and another, 4 Campb. 51. Barlow v. Bishop, 1 East. 432.-3 Esp. 266. S. C. Ânte, 36. 4 6 Le Feuvre v. Lloyd, 5 Taunt. 749. Ante, 36, 7. n. 4. Goupy v. Harden, 7 Taunt. 159, 162, 3. Aute, 36, 7. n. 4. sc forms, post, 180. n. 1. transfer. In the case of bills under five pounds, the indorse- IV. Modes of ment must be attested by a subscribing witness, and must mention the name and place of abode of the indorsee, and bear date at or before the making thereof; in short, it must be made in the form prescribed in the schedule to the statute 17 Geo. 3. c. 30. s. 1, which regulates these indorsements'. Where the residence of the indorser of a bill is not well known in the commercial world, it would be advisable for him in all cases to mention in his indorsement the name of the place where he resides. An indorsement in blank is by far the most common, In blank. and is made by the mere writing of the indorser's name on the back of the bill, without any mention of the name of the person in whose favour the indorsement is made, and is sufficient to transfer the right of action to any bonâ fide holder, and so long as it continues in blank makes the bill or note payable to bearer3; but the holder may write over it what he pleases, and a blank indorsement on a bill of exchange, conveys a joint right of action to as many as agree in suing on the bill, though such persons be not in partnership 4. It has been said, that such an indorsement does not transfer the property and interest in the bill to the indorsee, without some further act; but that it gives him, as well as any other person to whom it is afterwards transferred, the power of constituting himself assignee of the beneficial interest in the bill, by filling it up payable to himself, (as by writing over the indorser's name pay the contents,") which he may do See provision in France, Pothier Traité du Contrat de Change, part 1. chap. 3. num. 130. and see Pardessus, 1 tom. 364 to 379. 2 Bul. Ni. Pri. 276. Bayl. 46. Peacock v. Rhodes, Dougl. 633. ante, 171.-Newsome v. Thornton, 6 East. 21, 2. Per Lord Ellenborough, in Ord v. Portal, 3 Campb. 240. 'Clark v. Pigot, 1 Salk. 126.-12, Mod. 192. S. C.-Lambert . Pack, 1 Salk. 128.-Lucas v. Haynes, id. 130.-Lambert v. Oakes, 12 Mod. 244.-Lord Raym. 443. S. C.-Vin. Ab. tit. Bills of Ex change, H. 6.-Bul. Ni. Pri. 275. IV. Modes of transfer. at the time of trial'; it is now however considered, that a blank indorsement is sufficient of itself to transfer the right of action to any bonâ fide holder. A blank indorsement may be converted into a special one, by the holder's inserting above it the words " pay the contents to A. B." but such holder by writing those words, and transferring the bill to the party named in the indorsement, without writing his own name as an indorser, will not be liable on the bill. If the indorsee fill up the blank indorsement, and make it payable to himself, it is said the action cannot be brought in the name of the indorser, which otherwise it may be3. Theed v. Lovell, 2 Stra. 1103.-Lambert v. Oakes, 12 Mod. 244. Lord Raym. 443. S. C.-Lambert v. Pack. 1 Saĺk. 127.—Lucas v. Haynes, id. 130.-Dehers v. Harriot, 1 Show. 163.-Moore v. Manning, Comyns, 311.-Lucas v. Marsh, Barnes, 453.-Vin. Ab. tit. Bills of Exchange, H. 8.-Bul. Ni. Pri. 275. 8. 2 Vincent and others v. Horlock and others, 1 Campb. 442. Action against defendants as indorsers of a bill of exchange; the declaration stated the bill to have been drawn by Jacks, payable to his own order, indorsed by him to defendants, and by them to plaintiffs. The fact was, that Jacks, the drawer and payee of the bill, indorsed it in blank to Horlock and Co., and that Caleb Jones, one of the partners in that house, wrote over Jacks's signature "pay the contents to Vincent and Co." without signing his own name or that of his firm. Lord Ellenborough. I am clearly of opinion that this is not an indorsement by the defendants, for such a purpose, the name of the party must appear written, with intent to indorse. We see these words, "pay the contents to such a one," written over a blank indorsement every day, without any thought of contracting au obligation, and no obligation is thereby contracted. When a bill is indorsed by the payee in blank a power is given to the indorsee of specially appointing the payment to be made to a particular individual; and what he does in the exercise of this power is only expressio eorum quæ tacite insunt. This is a sufficient indorsement to the plaintiffs, but not by the defendants. Plaintiff nonsuited.-See also Ex parte Isbester, 1 Rose, 20. S. P. 3 A full or special indorsement contains in itself a transfer of the interest in the bill to the person named in such indorsement, Poth. Traité du Contrat du Change, part 1, chap. 2, s. 23, 4. But a bare indorsement, without other words purporting an assignment, does not work an alteration of the property. Per cur. Lucas v. Haynes, Salk 130. Clark v. Pigot, 12 Mod. 193. 1 Salk. 126. S. C. Clark having a bill of exchange payable to him or order, put his name upon it, leaving a vacant space above, and sent it to J. S. his friend, who got it ac cepted; but the money not being paid, Clark brought assumpsit against the acceptor. And it was objected that the action should have been brought by J. S. But per Holt, C. J., J. S. had it in his power to act either as servant or assignee. If he had filled up the blank space, making the bill payable to him, as he might have done if he would, that would have witnessed his election to have received it as indorsee. The property of the bill would have been transferred to him, and he only could have maintained this action against the ac transfer. A blank indorsement makes a bill transferrable by IV. Bodes of the indorsec and every subsequent holder by mere delivery; and when the first indorsement has been in blank, the bill or note, as against the payce, the drawer, and acceptor, is afterwards assignable by mere delivery, notwithstanding it may have upon it subsequent indorsements in full, because a holder, by delivery, may declare and recover as the indorsee of the payee, and strike out all the subsequent indorsements, whether special or not. ceptor; but since he has not filled up the blank space, his intention is presumed to act as servant only to Clark, whose name was put there; that on payment thereof a receipt for the money might be written over his name, and therefore the action is maintainable by Clark. From the foregoing case it appears that a blank indorsement is an equivocal act, and that it is in the power of the party to whom the bill is delivered, to make what use he pleases of such an indorsement. He may either use it as an acquittance to discharge the bill, or as an assignment to charge the indorser. Selw. N. P. 4th edit. 331.2. Promissory notes and bills of exchange are frequently indorsed in this manner" pay the money to my use," in order to prevent their being filled up with such an indorsement as passes the interest. Per Lord Hardwicke, Ch. in Snee v. Prescott, 1 Atk. 249. "A bill, though once negotiable, is certainly capable of being restrained. I remember this being determined on argument. A blank indorsement makes the bill payable to bearer; but by a special indorsement the holder may stop the negotiability." Per Lord Mansfield, C. J. Archer v. Bank of England, Dougl. 659. 'Peacock v. Rhodes, Dougl. 611, 633. Bayl. 48, 9. A bill was drawn by the defendant payable to Ingram or order; Ingram indorsed it in blank, after which it was stolen; the plaintiff took it bonâ fide, and paid a valuable consideration for it, and acceptance and payment being refused, gave notice to the defendant and brought this action. A case was reserved for the opinion of the court, and it was contended, that this bill was not to be considered as payable to bearer, and that the plaintiff had no better right upon it than the person of whom he took it; but the court said, that there was no difference between a note indorsed in blank and one payable to bearer, and the plaintiff had judgment. Smith v. Clarke, Peake Rep. 225. 1 E-p. Rep. 180. S. C.-Anonymous, 12 Mod. 345. S. P. A bill was indorsed in blank by the payee, and after some other indorsements was indorsed to Jackson or order. Jackson sent it to Muir and Atkinson, but did not indorse it, and Mair and Atkinson discounted it with the plaintiffs; the plaintiff struck out all the indorsements except the first, which continued in blank. This was an action against the acceptor, and it was objected that the plaintiffs could not recover, without an indorsement by Jackson, but Lord Kenyon held otherwise, and the plaintiffs recovered. The plaintiffs afterwards proved that Jackson desired Muir and Atkinson to discount this bill, but Lord Kenyon thought the plaintiffs" case made out without this evidence. Chaters v. Bell, 4 Esp. Rep. 120. The declaration stated that a bill was drawn payable to Curry, by him indorsed to defendant, and |