(n) Awde v. Dixon, 5 E. L. & E. 512; s. c. 6 Exch. 869; Evans v. Bremmer, 35 E. L. & E. 397; Prentiss v. Graves, 33 Barb. 621.

(o) Fitch v. Jones, 5 E. & B. 238. See, for effect of illegality of consideration, Brown v. Tarkington, 3 Wallace, 377, and Clubb v. Hutson, 18 C. B. (n. s.) 414.

(oo) Nat. Bank v. Lewis, 75 N. Y. 524; Scudder v. Thomas, 35 Ga. 364; Holden v. Cosgrove, 12 Gray, 216; Sawyer v. Wis-well, 9 Allen, 39; Hunt v. Rumsey, 83 Mich. 136; Union Nat. Bank v. Fraser, 63 Miss. 231; Schutt v. Evans, 109 Pa. 627; Mason v. Jordan, 13 R. I. 193; Wegner v. Biering, 65 Tex. 511; Bank v. Lockwood, 13 W. Va. 392.

(p) Dwight v. Pease, 3 McLean, 94. But see, for a disregard of this rule in reference to a payee whose name was left in the note by mistake, Pease v. Dwight, 6 How. 190." indorsement, can become himself an indorser. It is not enough that a name is written on the back of a note or bill, for although this is, literally speaking, an indorsement, whether it be so or not by law and the usage of merchants must depend upon the character of the signer. The effect of a simple signature, without any other words, on the back of a note, by one not the payee, has been much considered and variously decided. From the authorities which we deem entitled to most respect upon this question, and from general principles, we come to these conclusions: If any one not the payee of a negotiable note, or in the case of a note not negotiable, if any party, writes his name on the back of the note at or sufficiently near the time it is made, his signature binds him in the same way as if it was on the face of the note and below that of the maker, that is to say, he is held as a joint maker, or as a joint and several maker according to the form of the note. (q) If the signature be at a distinctly later period * after the making and delivery of the note, the signer, as to the payee, is not a maker but a guarantor. (r) His promise is void if without consideration, but the consideration may be the original consideration for the note, if the note was received at his request and upon his promise to guarantee the same, or perhaps, if the note was made at his request alone, without the promise, and more certainly if the note was given for his benefit; or the consideration for the guaranty may be a new one moving in some way from the holder. In the last case, if the note is not negotiable, the party indorsing can be held only as maker or as guarantor, but if the note be negotiable, the question might arise whether, although the party signing is only a guarantor as to the payee or party receiving the note from him, he may not be liable to subsequent parties as indorser. For if he be only a guarantor he may make the defence of a want of consideration against any holder, but if an indorser, only against his immediate indorsee. This question we should answer by saying, that if the payee writes his name over the name of the other, thus making him to all appearances a second indorser, he might be held as such by any subsequent ignorant holder for value, because he has enabled the payee to give his signature this appearance and therefore this effect. And we should go further and consider that he would be liable to any holder even with full notice, because he wrote his name for the purpose of giving the payee his credit, and therefore impliedly authorized the payee to give his suretyship any character perfectly compatible with the manner and place of his signature, so that unless there was a special agreement between the parties that this should not be done, which was also known to the holder, the payee might transfer the note, making the signer a second indorser, and liable as such. (s) It has been held in England, that one sued as indorser cannot plead in defence that the note was not indorsed to him. (t)1

(q) Campbell v. Butler, 14 Johns. 349; Dean v. Hall, 17 Wend. 214; Sampson p. Thornton 3 Met. 275; Union Bank v. Willis, 8 id. 504; Austin v. Boyd, 24 Pick. 64; Bryant v. Eastman, 7 Cush. 111; Adams v. Hardy, 32 Me. 339; Martin v. Boyd, 11 N. H. 385; Flint v. Day, 9 Vt. 345; Bright v. Carpenter, 9 Hamm. 139; Carroll p. Weld, 13 Ill. 682. See also Ellis p. Brown, 6 Barb. 282; Malbon v. Southard, 36 Me. 147; Partridge '•. Colby, 19 Barb. 258; Schneider p. Schiff-man, 20 Mo. 571; Greenough v. Smead, 3 Ohio St. 415; Seabury v. Hungerford, 2 Hill" (N. Y.), 84; Cottrell v. Conklin, 4 Duer, 45; Brown v. Curtiss, 2 Comst. 225; Sylvester v. Downer. 20 Vt. 355; McGuire p. Bosworth, 1 La. An. 248; Penny p. Parham, 1 La. An. 274; Collins v. Everett, 4 Ga. 266; Robinson v. Abell, 17 Ohio, 36; Webster v. Cobb, 17 Ill. 459; Goode v, Jones, 9 Mo. 876; Lewis p. Harvey, 18 Mo. 74; Wilson p. Font, 11 Met. 285; Lowell v. Gage, 38 Me. 35; Carpenter p. Oaks, 10 Rich. L. 17; Higgins p. Watson, 1 Mann. (Mich.) 428; Cecil p. Mix, 6 Port. (Ind.) 478; Cook p. South-wick, 9 Tex. 615; Branch Bank p. James, 9 Ala. 949; Essex Company p. Edwards, 12 Mass. 273; Gorman p. Ketchnm, 33 Wis. 427. For cases in which such signer is held only as guarantor or indorser, see Blatchford v. Milliken, 35 Ill. 434; Van Doren v. Tjader, l Nev. 380; Price v. Lavender, 38 Ala. 389.

(r) Id.; Tenney p. Prince. 4 Pick Sampson p. Thornton, 3 Met. 275; Ham-mono v. Chamberlain, 26 Vt. 406.

(s) Crozer v. Chambers, 1 Spencer, 256; Riley v. Gerrish, 9 Cush. 106; Moies v. Bird, 11 Mass. 440. See post, Section III. p. *250.

(t) McGregor v. Rhodes, 6 E. & B. 266.

1 Indorsement of negotiable paper naturally implies both a transfer by the indorser and an obligation assumed by him. One who is not a holder of the legal title of a bill or note cannot indorse it in this complete sense; but though such a person cannot by writing his name on the back of the paper transfer title, there is no reason why he should not be held to have incurred thereby the same obligation as a true indorser to one who takes the instrument subsequently. Nor is there any reason why the payee should not have the benefit of this obligation if the indorsement was made before delivery. It is conceived that this is the understanding of business men, - is, in short, the custom of merchants. The courts have not, however, generally given effect to this understanding, but have adopted various discordant views and multiplied fine distinctions in regard to them. That such an anomalous indorsement made before delivery to the payee, gives the latter some right against the former is almost universally held.