(tv) As in New York, Spies v. Gilmore, 1 Comst. 321; Ellis v. Brown, 6 Barb. 282; Waterbury v. Sinclair, 26 id. 455; Cottrell v. Conklin, 4 Duer, 45. These decisions overrule the earlier ones in this State, holding such indorser liable as an original promisor. See Herrick v. Carman, 12 Johns. 159; Campbell v. Butler, 14 id. 349. In Indiana, Wells v. Jackson, 6 Blackf. 40; Cecil v. Mix, 6 Ind. 478; Vore v. Hurst, 13 id. 551. In Tennessee, Camparree v. Brockway, 11 Humph. 355; Clouston v. Barbiere, 4 Sneed, 336. In Iowa, Fear v. Dunlap, l Greene, 331. In California, such party is called a guarantor, but his liability is the same as that of an indorser. Biggs v. Waldo, 2 Cal. 485; Pierce V.Kennedy, 5 id. 138. Mississippi, Jennings v. Thomas, 13 S. & M. 617, 5 id. 627.

(tw) Clark v. Merriam, 25 Conn. 576; Schollenberger v. Nehf, 28 Penn. St. 189; Carroll v. Weld, 13 Ill. 682; Cottrell v. Conklin, 4 Duer, 45; Lewis v. Harvey, 18 Mo. 74; Barrows v. Lane, 5 Vt. 161; Knapp v. Parker, 6 id. 642; Sandford v. Norton, 14 id. 228; Flint v. Day, 9 id. 345; Sylvester v. Downer, 20 id. 355; Beckwith v. Angell, 6 Conn. 315; Perkins v. Catlin, 11 id. 213; Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 id. 36; Greenough v. Smead, 3 Ohio St. 415: Jennings v. Thomas, 13 S. & M. 617, 5 id. 627; Fear v. Dunlap. 1 Greene, Iowa, 331; Patterson v. Todd, 18 Penn. St. 426. This question is discussed at length in Perkins v. Catlin, 11 Conn, 213, by Huntington, J., who said. "The indorsement is not controlled by the oral testimony, but completed according to the manifest intention of the parties. The evidence is offered in conformity but in Massachusetts the presumption that he intended to be an original promisor seems to be conclusive. (tx)

The indorsement of a bill or note passes no property, unless the indorser had at the time a legal property in the note. (u) *And therefore a married woman cannot at common law, indorse a note made payable to her before or during her coverture, unless by force of some statutory provision. (v)1 Nor does the property in a note pass by indorsement, if the indorsee knew at the time he received it that the indorser had no right to make the transfer. (w) A party receiving a bill or note as agent, or for any particular purpose, and exceeding his authority or violating his duty, may nevertheless pass the property in the note to a bona fide holder. (x) But no assignee, even for with the familiar rule, that the law does not imply a contract where an express one has been made." See Cooke v. Nathan, 16 Barb. 34.3; and the remarks of Waite, J., in Castle v. Candee, 16 Conn. 223.

(tx) Wright v. Morse, 9 Gray, 337. See also Essex Co. v. Edmands, 12 Gray, 273.

(u) Mead v. Young, 4 T. R. 28. In this case it was held that in an action by the indorsee against the acceptor of a bill of exchange, drawn payable to " A, or order," it is competent for the defendant to give in evidence that the person who indorsed to the plaintiff was not the real payee, though he be of the same name, and though there be no addition to the name of the payee on the bill. The indorsement and delivery must both be made by the person then having the legal interest in the note; and if a note is indorsed by the payee, and retained in his possession, and after his death is delivered by his executor to the person to whom it was indorsed, the title to the note is not thus transferred. Bromage v. Lloyd, 1 Exch. 31; Lloyd v. Howard, 1 E. L. & E. 227, n.; Awde v. Dixon, 5 E. L. & E. 512; s. c. 6 Exch. 869; Prescott v. Brinsley, 6 Cush. 233; Clark v. Boyd, 2 Hamm. 56; Clark v. Sigourney, 17 Conn. 511. See also Bay v. Coddington, 5 Johns. Ch. 54; Lawrence v. Stonington Bank, 6 Conn. 521.

(v) Savage v. King, 17 Me. 301. See Barlow v. Bishop, 1 East, 432; Commonwealth v. Manley, 12 Pick. 173.

(w) See Roberts v. Eden, 1 B. & P. 398; Stoddard v. Kimball, 6 Cush. 470.

(x) Thus where the drawer of a bill of exchange which had been accepted, wrote his name across the back of it, and delivered it to A to get it discounted, and A, while the bill was yet running, deposited it with B, as security for money advanced to himself, but without any fraud in B, this was held to be a valid indorsement from the drawer to B. Palmer v. Richards, 1 E. L. & E. 529. In this case, Parke, Baron, said: " I think this was a perfectly good indorsement from Edwards to Tingey. If the allegation in the declaration were that there had been an indorsement of this bill from Edwards to Brown, it would be a question of fact whether the writing of Edwards's name on the back of the instrument, accompanied by a delivery of it to Brown, meant to transfer the property in the bill to him, so as to enable him to indorse it as his own, or merely to hand it over to another party. As to the case which has been cited, of Lloyd v. Howard, I think the decision there was perfectly right, and an authority for saying that there was no indorsement from Edwards to Brown; for the mere writing of a man's name on the back of an instrument is not enough for that purpose; it is only one act towards it; and Lloyd v. Howard shows that the writing the name and handing the instrument to a third person, without any intention to pass the property in it to that person, is insufficient to constitute an indorsement to that perits negotiability cannot be restricted by subsequent special indorsements, but the holder may strike them all out and recover under the blank indorsement, by filling that so as to make the note payable to himself. (b) Where one has acquired a bill by indorsement, bond fide, he may hold it and recover upon it, although earlier parties knew that it was transferred wrongfully or without authority. (c) If a negotiable bill or note which is open to any defence that can be made only against a holder with knowledge or notice, pass by indorsement, for consideration, to a holder without knowledge or notice, against whom the defence cannot be made, and this holder indorse it over for consideration to a party who has knowledge or notice of the defence, such indorsee may nevertheless recover on the note, because he stands on the right of his indorser. The party bound to pay it to the holder without notice is not injured by being bound to pay it to his indorsee; and the innocent holder has not only the right of enforcing payment, but of transferring the note by indorsement; and with it all his rights. (d)