In the following cases it was held that the anomalous indorser would be presumed to be a co-maker. Good v. Martin, 95 U. S. 90; Heise v. Bumpass, 40 Ark. 545; Kiskad-den v. Allen, 7 Col. 206 , Gilpin v. Marley, 4 Houst. 284; Melton v. Brown, 25 Fla. 461; Stevens v. Parsons, 80 Me. 351; Schroeder v. Turner, 68 Md. 506; Dubois v. Mason, 127 Mass. 37; Cook v. Brown, 62 Mich. 473; Sweet v. Woodin, 72 Mich. 393; Robinson v. Bartlett, 11 Minn. 410; (of. Buck v. Hutchins, 45 Minn. 270); Polkinghorne v. Hendricks, 61 Miss. 366; Faulkner v. Faulkner, 73 Mo. 327; McMullen v. Rafferty, 89 N. Y. 456 (non-negotiable note); Baker v. Robinson, 63 N. C. 191; (see also South-erland v. Fremont, 107 N. C. 565; Hoffman v. Moore, 82 N. C. 313); Seymour v. Mickey, 15 Ohio St. 515; Barr v. Mitchell, 7 Ore. 346 (non-negotiable note); Carpenter v. McLaughlin, 12 R. I. 270; McCreary v. Bird, 12 Rich. 554; Carr's Ex. v. Rowland, 14 Tex. 275; McGee v. Connor, 1 Utah, 92; National Bank of Bellows Falls v. Dorset Marble Co. 61 Vt. 106; Com. v. Powell, 11 Gratt. 822, 828; Burton v. Hansford, 10 W. Va. 470.

In other jurisdictions the anomalous indorser is presumptively a surety to the maker. Eppens v. Forbes, 82 Ga. 748; O'Leary v. Martin, 21 La. An. 389.

In other jurisdictions the anomalous indorser is presumed to have incurred the liability of guarantor. DeWitt County Nat. Bank v. Nixon, 125 Ill. 615; Witters v.

It is held in many States that one who indorses *a note 1" in blank at any time before it is indorsed by the payee may be held as an original promisor.(u) And it has been held that this is a conclusive presumption of law, and cannot be rebutted by evidence showing a different agreement. (v) In Louisiana, it is held that a person who is not a party, putting his name to a note, is presumed to be a surety. (vv)

Whether two persons who indorse a bill or note at the same time are joint indorsers, or first and second indorsers, is open to evidence as between the two; and one who indorses at the request of another and for the same purpose is not a joint indorser with

(u) Irish v. Cutter, 31 Me. 536; Riley v. Gerrish, 9 Cush. 104; Schneider v. Schiffman, 20 Mo. 571; Orrick v. Colston, 7 Gratt. 189; Carroll v Weld, 13 Ill. 682;

Biggs v. Waldo, 2 Cal. 485. See ante, p * 243, note (q).

(v) Essex Company v. Edmands, 12 Gray, 273.

(vv) Collin's v. Trist, 20 La. An. 348.

Berry, 25 Kan. 373; Talley v. Burtis, 45 Kan. 147; Arnold v. Bryant, 8 Bush, 668, (statutory); Van Doren v. Tjader, 1 New 380; Harding v. Waters, 6. Lea, 324.

In Connecticut he is presumed to guarantee the collectibility at maturity by the use of due diligence (including legal process unless the maker is insolvent), Rhodes v. Seymour, 36 Conn. 1.

In many States the courts, refusing to make such arbitrary presumptions as are enumerated above, and holding that only the payee of a bill or note can be the first indorser, have decided that the anomalous indorser incurs the liability of second indorser. Collins v. Everett, 4 Ga. 266; Knopf v. Morel, 111 Ind. 570 (see also DePauw v. Bank of Salem, 126 Ind. 553); Needhams v. Page, 3 B. Mon. 465; Thomas v. Jennings, 13 Miss. 627; Jennings v. Thomas, 21 Miss. 617; Hayden v. Weldon, 43 N. J. L. 128; (of. Building Society v. Leeds, 50 N. J. L. 399); Phelps v. Vischer, 50 N. Y. 69; Deering v. Creighton, 19 Ore. 118; Central Nat. Bank v. Dreydoppel, 134 Pa. 499; King v. Ritchie, 18 Wis. 554; Blakeslee v. Hewett, 76 Wis. 341.

In New York, and perhaps in Oregon, and Wisconsin, however, if the indorsement was intended for his security, the payee may write an indorsement without recourse to the anomalous indorser over the indorsement of the latter, and may then in the character of second indorsee maintain an action against the anomalous indorser. See cases above cited.

In Alabama and California, the liability to the payee is that of an indorser. Price v. Lavender, 38 Ala. 389; Hooks v. Anderson, 58 Ala. 238; Fessenden v. Summers, 62 Cal. 484.

There is also, the utmost confusion in the law as to how far parol evidence is admissible to show what liability was intended by the parties in a particular case. Generally such evidence is admitted, and in this way the injustice of arbitrary presumptions is often prevented. See cases above cited.

In England, it seems, the anomalous indorser is never liable to the payee as such. LeCaan v. Kirkman, 6 Jurist, N. S. 17; Gwinnell v. Herbert; 5 A. & E. 436; Steele v. McKinlay, 5 App. Cas. 754; 2 Ames B. & N. 839.

Attempts have been made to correct the law by statute. In Massachusetts it is enacted in Pub. Stat. c. 77,§ 15, that " Every person becoming a party to a promissory note payable on time by a signature in blank on the back thereof shall be entitled to notice of non-payment the same as an indorser." Under tin's statute an anomalous indorser of a demand note or of any bill of exchange and, except as regards notice, an anomalous indorser of notes payable on time, it may be inferred, is still to be treated as a co-maker. See Hitchings v. Edmands, 132 Mass. 338; Lanahan v. Porter, 148 Mass. 596. A happier piece of legislation, which if generally copied would, it is believed, harmonize the law with the custom of merchants, is found in the Civil Code of California. § 3117, "One who indorses a negotiable instrument before it is delivered to the payee is liable to the payee thereon as an indorser." See also post, p. * 250.

him. (vw) It is indeed a general rule, that as between drawer, acceptor, and indorsers, their relation and responsibility may be explained by evidence. (vx)

Notes and bills are usually considered together; the law respecting them being in most respects the same. The maker of a note being liable, generally, in the same way as the acceptor of a bill. And if an instrument be so far ambiguous, that it may be doubted whether it is a bill or a note, it seems that the holder may treat it as either, at his election. (w)

Among the points of difference, it has sometimes been supposed that a bill drawn on the credit of goods operates as a bill of sale of the goods, and passes the property in them to one who discounts or buys the bill. This is not quite so. A bill drawn by a consignor or a consignee of goods, may stand on the credit of those goods, and those goods may be given as security for the bill to one who discounts it; but it seems settled that the mere drawing of the bill, and selling it or offering it for discount, has not the effect of transferring the goods. (x) But where the bill of lading was attached to the bill of exchange, and the bill discounted by a bank on the credit of the bill of lading, and the consignee on whom the bill was drawn, refused acceptance, it was held that the bank took the goods by discounting the bill. (xx)