(j) Montague v. Perkins, 22 E. L. & E. 516; Russel v. Langstaffe, Dougl. 514; Violett v. Patton, 5 Cranch, 142, 151; Johnson v. Blasdale 1 Sm. & M. 1; Tor-rev v. Fisk, 10 Sm. & M. 590; Smith v. Wyckoff, 3 Sandf. Ch. 77, 90; Fullerton v. Sturges, 4 Ohio St. 529; Young v. Ward, 21 Ill. 223.

(k) Wilbour v. Turner, 5 Pick. 526; Dole v. Weeks, 4 Mass. 451. And this is so although it be under seal. Porter v. McCollum, 15 Ga. 528.

(l) Gurney v. Womersley, 4 E. & B. 133.

1 Such a transferrer impliedly warrants the genuineness of the instrument in every material part, Bankhead v. Owen, 60 Ala. 457; Snyder v. Reno, 38 Ia. 329; Smith v. McNair, 19 Kan. 330; Hurst v. Chambers, 12 Bush, 155; Worthington v. Cowles, 112 Mass. 30; Boyd v. Mexico Southern Bank, 67 Mo. 537; Whitney v. Potsdam Bank, 45 N. Y. 303; Swanzev v. Parker, 50 Pa. 441; Allen v. Clark, 49 Vt. 390; Giffert v. West, 33 Wis. 617; 37 Wis. 115. See also Allen v. Sharpe, 37 Ind. 67. Baxter v. Duren, 29 Me. 434, contra, has been substantially overruled by Milliken v. Chapman, 75 Me. 306, 309. And that he gives the transferee a good title to the instrument. Otis v. Cullum, 92 U. S. 447; Hecht v. Batcheller, 147 Mass. 335, 339; Meriden Nat, Bank v. Gallaudet, 120 N. Y. 298, and cases above cited. Further, if the holder knows of any defence to the instrument or that the parties to it were insolvent, it is a fraud to transfer it to one who is ignorant thereof, and such a transfer may be avoided or damages recovered. Brown v. Montgomery, 20 N. Y. 287; Littauer v. Goldman, 72 N.Y. 506; Mandeville v. Newton, 119 N. Y. 10; of. People's Bank v. Bogart, 81 N. Y. 101. It is generally held also that the transferrer impliedly warrants the competency of the parties to the instrument and its legal validity. Lobdell v. Baker, 3 Metc. 469, 472; Thrall v. Newell, 19 Vt. 202; Giffert v. West, 33 Wis. 617; Daskam v. Ullman, 74 Wis. 474. See also Hussey v. Sibley, 66 Me. 192. But see Otis v. Cullum, 92 U. S. 447; Littauer v. Goldman, 72 N. Y. 506.

There is much authority to the effect that if the principal party to a bill or note was actually insolvent at the time of the transfer, the transaction may be avoided, though the "transferrer was ignorant of the insolvency. Harris v. Hanover Nat. Bank, 15 Fed. Rep. 786; Fogg v. Sawyer, 9 N. H. 365; Lightbody v. Ontario Bank, 11 Wend. 9; 13 Wend. 101; Roberts v. Fisher, 43 N. Y. 159; (see also Thomas v. Board of Supervisors, 115 N. Y. 47, 54); Wainwright v. Webster, 11 Vt. 576; Townsend v. Bank of Racine, 7 Wis. 185. But all these cases except Harris v. Hanover Nat. Bank and Roberts v. Fisher related to bank notes, which may properly be distinguished. They are used as a substitute for money, and a warranty that they are redeemable at the time of transfer may well be implied. See Vol. II. p. * 622. As to other negotiable paper, the better view is that the risk of past as well as future insolvency of the parties to the instrument rests with the transferee. Milliken v. Chapman, 75 Me. 306; Hecht v. Batcheller, 147 Mass. 335; Bicknall v. Waterman, 5 R. I. 43; Barton v. Trent, 3 Head, 167.

If the transferrer expressly refuses to warrant, no warranty is implied. Bell v. Dagg, 60 N. Y. 528. So, if the purchaser agrees "to take his chances." Beal v. Roberts, 113 Mass. 525.

The holder of negotiable paper, indorsed in blank or made payable to bearer, is presumed to be the owner for consideration. If circumstances cast suspicion on his ownership, as if it came to him from or through one who had stolen it, then he must prove that he gave value for it; and on such proof will be entitled to it, unless it is shown that he was cognizant of the want of title, or had such notice or means of knowledge as made his negligence equivalent to fraud. (m) If one signs a note on condition that a certain other person sign it also, and that other person does not sign it, it is said that the signer is not liable to an indorsee; but this must not be extended to an innocent indorsee for value. (n) A distinction of this kind has been made. If an indorser shows that the paper was issued for an illegal consideration, it may be no defence against an innocent holder, who must, however, prove value paid; but if he only shows that the consideration was void, the presumption of value is in favor of the indorsee, and the defendant must prove that the plaintiff holds it not for value. (o) A note given in renewal of a note made for an illegal consideration, is open to the same defence as the original note, (oo)

All the payees must join in the indorsement, (p) and strictly speaking, only a payee, or one made payee by a subsequent

(m) Miller v. Race, 1 Burr. 452; Grant v. Vaughan, 3 Burr. 1516; Peacock v. Rhodes, Dougl. 633; Collins v. Martin, 1 B. & P. 648; Lawson v. Weston, 4 Esp. 56; King v. Milsom, 2 Camp. 5; Solomons v. Bank of England, 13 East, 135, n.; Paterson v. Hardacre, 4 Taunt. 114; Hatch v. Searles, 31 E. L. & E. 219; Judson v. Holmes, 9 La. An. 20; Cruger v. Armstrong, 3 Johns. Cas. 5; Conroy v. Warren, 3 Johns. Cas. 259; Thurston v. McKown, 6 Mass. 428; Munroe v. Cooper, 5 Pick. 412; Wheeler v. Guild, 20 Pick. 545; Aldrich v. Warren, 16 Me. 465. It is now well settled, overruling the earlier cases, that if the defendant prove a note fraudulent or illegal in its inception, this throws the burden on the plaintiff of proving that he paid value. Smith v. Braine, 3 E. L. & E. 379; Bailey v. Bid-well, 13 M. & W. 73; Tatam v. Haslar, 23 Q. B. D. 345; Case v. Mechanics Banking Association, 4 Comst. 166; Canajoharie Bank v. Diefendorf, 123 N. Y. 191. It is otherwise if the defendant merely show a want of consideration when the note was given. Middleton Bank v. Jerome, 18 Conn. 443; Ellicott v. Martin, 6 Md. 509; Thompson v. Shepherd, 12 Met.

311. Where a bill or note is indorsed in blank, and is transferred by the indorsee by delivery only, without any fresh indorsement, the transferee takes, as against the acceptor, any title which the intermediate indorsee possessed. Fair-clough v. Pavia, 25 E. L. & E. 533.