(cd) Banks v. Marshall, 23 Cal. 223.
(d) There can be no indorsement without a signing of the name. Vincent v. Horlock, 1 Camp. 442. In this case A, the drawer and payee of a bill of exchange, indorsed the bill in blank to B, who wrote over A's signature, " pay the contents to C," and then delivered it to C. Held, that B was not liable to C as an indorser of the bill. Lord Ellenborough said: "I am clearly of opinion that this is not an indorsement by the defendant. 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 an 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 qua tacite insunt. This is a sufficient indorsement to the plaintiffs, but not by the defendants." So Buller, J., in Fenn v. Harrison, 3 T. R. 761, says: " In the case of a bill of exchange, we know precisely what remedy the holder has, if the bill be not paid; his security appears wholly on the face of the bill itself, - the acceptor, the drawer, and the indorsers, are all liable in their turns; but they are only liable because they have written their names on the bill."
(e) The figures 128 were held sufficient in Butchers and Drovers Bank v. Brown, 6 Hill (N. Y.), 443.
(f) In order to a valid indorsement, of assignment the legal effect of an indorsement, are Henderson v. Ackelmire, 59 Ind. 540; Sears v. Lantz, 47 Ia. 658; Marks v. Herman, 24 La. An. 335; Maine, etc. Co. v. Butler, 45 Minn. 506; Duffy's Adm. v. O'Conner, 7 Baxter, 498. There seems, however, great force in the reasoning of Marston, J., in the case of Aniba v. Yeomans, 39 Mich. 171, where a contrary decision was reached, "The indorsement upon a negotiable promissory note is something more than the mere transfer of the interest of the payee therein. It includes also the personal undertaking of the indorser that if the note is not paid at maturity, upon notice of that fact he will pay the same." See also Hatch v. Barrett, 34 Kan. 223; Lyons v. Divelbis, 22 Pa. 185; Hall v. Toby, 110 Pa. 318; Crosby v. Roub, 16 Wis. 616.
1 "I this day sold and delivered " to A the within note, signed by the payee, was held an indorsement in Adams v. Blethen, 66 Me. 19, and other decisions giving words held that if a payee writes his name on any part of the paper with intent to indorse it, this is an indorsement, (ff) The purchaser of the note may then write over this indorsement an order to pay the contents of the note to him or to his order, if the payee has not already written this. The purchaser thus becomes an indorsee. When the name only is written it is called an indorsement in blank, and the holder may transfer it by delivery, and it may thus pass through many hands, the final holder who demands payment writing over the name indorsed an order to pay to him. Whenever this order is written by an indorser, whether a first or later indorser, it is an indorsement in full, and the indorsee cannot transfer the note except by his indorsement, which again may be in full or in blank. It is now quite settled that the executor or administrator of a deceased payee may indorse the note of his testator, (g) but he has no right to deliver to the indorsee a note which was indorsed by the deceased, but never delivered by him. (h) The same rule holds also in the case of an assignee of an insolvent payee. (i)
The indorsement of a blank note binds the indorser to any terms as to amount and time of payment which the party to whom the payee or holder must not only write his name on the back, but must deliver the bill to the indorsee. Emmett v. Tottenham, 20 E. L. & E. 348; Sainsbury v. Parkinson, id. 361. See also Hall v. Wilson, 16 Barb. 548.
(ff) Haines v. Dubois, 1 Vroom, 259.
(g) This question was ably discussed in the case of Rawlinson v. Stone, 3 Wils. 1. This was an action upon a promissory note, payable to A, or order, and indorsed by the administratrix of A. It was objected that the indorsement was not valid so as to give the indorsee an action in his own name. But the objection was overruled; and this case has been considered ever since as having settled the law upon this point. See Watkins v. Maule, 2 Jac. & W. 237, 243; Shaw, C. J., Rand v. Hubbard, 4 Met. 252, 258; Malbon v. Southard, 36 Me. 147; Dwight v. Newell, 15 Ill. 333.
(h) Bromage v. Lloyd, 1 Exch. 31; Clark v. Sigourney, 17 Conn. 511; Clark v. Boyd, 2 Hamm. 279.
(i) Pinkerton v. Marshall, 2 H. Bl. 334; Thomason v. Frere, 10 East, 418.
A statement on the back of the note signed by the payee, stating how much he is worth, is not an indorsement. Pickering v. Cording, 92 Ind. 306; and see Clark v. Whiting, 45 Conn. 149. Contra is Dunning v. Hiller, 103 Pa. 269. Where the payee of a note, a married woman, wrote on the back of the note for the accommodation of the maker, " I hereby charge my separate estate with the amount of this note," and signed her name, it was held that she was liable as an indorser. Robertson v. Rowell, 32 N. E. Rep. 898, (Mass.) he intrusts the paper inserts. (./') If the note be originally * made payable to " bearer," it is negotiated or transferred by delivery only, and needs no indorsement, (k) any person bearing or presenting the note becoming in that case the party to whom the maker of the note promises to pay it.
If a note, whether indorsed in blank or made payable to bearer, be transferred by delivery, the transferrer is not liable as an indorser, nor as a guarantor, nor is he, in general, liable in any way.1 But if the paper be wholly worthless, as by the forgery of the principal names, or for any similar reasons, the transferrer may be held to repay the money paid him for it, on the ground of failure of consideration. (l)