that he warrants genuineness of prior indorsements, apply also to their competency, and lead us to the same conclusion that it is warranted. In New York the doctrine of the text has been established by recent decisions. There it has been held that one who indorses a note purporting to be executed by a copartnership, impliedly warrants that it was made by the firm, and can not in a suit against him dispute it.1

$677. In the fifth place, as to title.-The indorser contracts that he has a lawful title to the bill or note, and a right to transfer it. If he has stolen or found the instrument, or otherwise acquired possession without title, and it be payable to bearer or indorsed in blank, he might, before its maturity, invest a bona fide indorsee without notice with a perfect title, although not himself possessing it; and even after maturity, the bona fide indorsee might get from him some superior rights to his own. But the indorsee might be involved in controversy, or be placed in the distasteful attitude of compelling payment by those who did not owe; and the indorser should not be protected while he brings mischief upon others. A forged instrument carries no title to the indorsee; and where the thief or finder of negotiable paper payable to order which has been indorsed, and put in circulation by the payee, erases the indorsement and, subsequently, personating the payee, forges his signature, and transfers the paper to a bona fide purchaser for value, no title passes as against the true owner.3

$678. Law of place applicable to indorsement.-An indorsement falls under the general rule that the obligations of

Dalrymple v. Hillenbrand, 2 Hun, 488 (9 N. Y. S. C. R.), affirmed in 62 N. Y., 5; Turner v. Keller, 66 N. Y., 66, but held in this case not to apply where the holder had procured a subsequent indorsement with knowledge of the antecedent forgery.

"Williams v. Tishomingo Sav. Inst., 57 Miss., 633; Ibid. ; Redington v. Wood, Cal. Law Times, Jan'y, 1873, p. 12; Edwards on Bills, 289: Story on Bills, §111; Story on Notes, §§ 135, 380; Cochran v. Atchison, S. C. of Kansas, May, 1882, Central L. J., May 26, 1882, p. 414 (vol. 14, No. 21).

* Colson v. Arnot, 57 N. Y., 253; Graves v. American Exchange Bank, 17 N. Y., 205; $903 et seq.

a personal contract are to be determined by the law of the place of its execution, and therefore an indorser may become responsible for a much higher rate of damages and of interest, upon the dishonor of a note, than he can recover from the drawer;1 and the jurisdiction of the Federal courts of the United States attaches upon an indorsement as a distinct contract, independently of the residence of the original and remote parties to the instrument.

2

§678a. Invalidity as between indorser and indorsee.The indorsement or assignment of a bill or note being an independent contract, the circumstances which would invalidate any other contract apply to it with like effect. Thus,

a war between the countries of which the indorsee and indorser are citizens, rendering them alien enemies, any commercial transaction between them, such as drawing a bill upon, or making or indorsing or assigning a note to, the other, is void.3

In a Virginia case it appeared that checks were drawn by a bank in Richmond, Va., upon a bank in New Orleans, and were indorsed in Petersburg, Va., in February, 1863, while the late war between the United States and Confederate States was in progress, to a resident of Vicksburg, Miss. Petersburg, Richmond, and Vicksburg were then in the Confederate lines, whilst New Orleans was in the permanent possession of the Federal forces. It was held that the indorsement was illegal and void, and that the indorsee could not recover against the indorser, in an action brought after the war.1

$679. Consideration between indorser and indorsee.There must be a consideration for an indorsement as be

'Slocum v. Pomeroy, 6 Cranch, 221; Powers v. Lynch, 3 Mass., 77; see post, chapter XXVII, sec. vii.; § 864.

Coffee v. Planters' Bank, 13 How., 183.

'Billgerry v. Branch, 19 Grat., 417, 437; Griswold v. Waddington, 16 Johns, 438; Willison v. Pattison, 8 Taunt., 439 (2 E. C. L. R.), s. c. 1 J. B. Moore, 133 McCaughy v. Berg, 4 Heisk., 695; see ante, § 218.

'Billgerry v. Branch, 19 Grat., 417, 437.

tween the immediate parties, and while it is prima facie evidence in itself of a consideration, the presumption as between immediate parties may be rebutted. Where the indorser makes the indorsement after the instrument is delivered, as a perfected obligation, it would be void for want of consideration. By the general law merchant the indorser of a negotiable instrument is bound instantly, and may be sued after maturity, upon demand and notice. But by the statutes of some of the States the maker must be first sued, and his property first subjected.3

SECTION II.

BY WHOM AND TO WHOM INDORSEMENT OR ASSIGNMENT MAY BE MADE.

680. In the first place, as to who may indorse or transfer negotiable paper.-Any person legally competent to enter into a contract may be the indorser, or transferrer by delivery of negotiable paper. If payable to the order of the payee, he or his legal representative must be the transferrer. In case of the bankruptcy of the payee of a bill or note, all his rights become vested in the assignee, who may transfer it in their own name; and the bankrupt can not ; and in the case of the death of the payee the like right devolves upon his executors or administrators. But if payable to several persons "as executors," all must concur. In

2 Collier v. Mahan, 21 Ind., 110.

'See ante, § 174. 'As in Colorado-Watson v. Kahn, 1 Col., 385. Illinois-Mason v. Burton, 54 Ill., 349; Booth v. Storrs, Id., 472. Mississippi-Harrison v. Pike, 48 Miss.,

46.

4

6

2 Pars. N. & B., 3; Story on Bills, § 195

'Chitty, 227; Story on Notes, § 123; ex parte Brown, 1 Glyn & J., 407.

Ashurst v. Bank of Australia, 37 Eng. L. & Eq. R., 149.

'Watkins v. Maule, 2 Jac. & Walk., 237; Rawlinson v. Stone, 3 Wils., 1; Rand v. Hubard, 4 Metc., 252; Malbon v. Southard, 36 Me., 147; Dwight v. Newell, 15 Ill., 333; Nelson v. Stollenwerck, 60 Ala., 140; Shelton v. Carpenter, 60 Ala., 211.

'Johnson v. Mangum, 65 N. C., 146.

Louisiana, where suit was brought against the executors of Mary C. Moore and John Moore, who were in their lifetime tutrix and cotutor of D. Magill, to recover judgment on two drafts which said tutrix and cotutor drew payable to their own order, it was held that they were not personally bound by their indorsement, although they omitted. therein to state their fiduciary capacity.1

§ 681. In the case of the marriage of a woman who is payee or indorsee of a bill or note, the property thereof vests in her husband, and he alone can indorse or transfer it; and in like manner, if the paper be made payable to her after marriage, her husband alone can indorse or transfer it. But this principle is subject to the limitation that the wife may, with the consent of the husband, indorse a bill or note made payable to her, and pass a good title to the indorsee.8

The law being based upon the distinction that coverture of the wife creates a disability on her part to enter into a contract which the assent of the husband may remove. The indorsement of the wife, under such circumstances, is equivalent to that of her husband. Her act becomes in

1 Lapeyre v. Weeks, 28 La., 665. The court said: "We do not regard Mary C. Moore and John Moore as indorsers of the drafts. In indorsing the drafts they omitted adding their capacity as tutrix and cotutor. In their fiduciary capacity the drafts were not indorsed and completed by the drawers, unless we regard the signatures of Mary C. Moore and John Moore as made in that capacity. Bills drawn by a fiduciary to his own order are not completed unless indorsed in the same capacity as drawn. We regard these drafts as completed, and must therefore consider that Mary C. Moore and John Moore indorsed them in the same capacity in which they drew them."

2

See ante, § 254; Mason v. Morgan, 2 Ad. & El., 30 (29 E. C. L. R.); Chitty, 26; Story on Notes, § 124; Barlow v. Bishop, 1 East., 433; Conner v. Martin, I Stra., 516; Miles v. Williams, 10 Mod., 243; Savage v. King, 5 Shep., 301; Miller v. Delamater, 12 Wend., 433.

4

See ante, §§ 252, 253.

Chitty on Bills, 21, 200; Stevens v. Beals, 10 Cush., 291; Miller v. Delamater, 12 Wend., 433; Hancock Bank v. Joy, 41 Me., 568; Reakert v. Sanford, 5 Watts & S., 164; Leeds v. Vail, 15 Penn. St., 185; Fredd v. Eves, 4 Harr. (Del.), 385; Cotes v. Davis, 1 Camp., 485; Prestwick v. Marshall, 7 Bing., 565 4 Car. & P., 594; Prince v. Brunatte, 7 Bing., N. C., 435; 2 Bright, Husb. and Wife, 42; Lindus v. Bradwell, 5 Com. B., 583; Lord v. Hall, 8 Com. B., 627. see ante, §§ 252, 253.

law his act, and the indorsee must claim through the husband by å title derived from him.1 If a woman who is the payee of a note payable to her order assigns it by delivery and afterward marries the maker, her indorsement after marriage transfers the legal title.*

§ 682. Infant as indorser.-An infant is not bound upon his indorsement of a bill or note, being incapable of making a contract; but he may, by his indorsement (which is voidable-not absolutely void), transfer the paper to any subsequent holder, against all the parties thereto, except himself.

§683. When a bill or note is payable or indorsed to a copartnership, any member of the firm may transfer it during the continuance of the firm, and indorse it in the firm name; and upon the death of a member of the firm, the survivor may indorse it in his own name. But the indorsement by a partner to his copartner, or to another person, of a bill or note payable to the firm, in his individual name, will not pass the title to the paper, nor enable the indorsee to bring a suit on it in his own name.R It has been held, however, that such an indorsement would pass the equitable title."

'Stevens v. Beals, 10 Cush., 291; and cases in note ante; see also ante, §§ 252, 253.

2 Guptill v. Horne, 63 Me., 405. Appleton, C. J.: “As the wife would have been compelled by a court of equity to indorse, her voluntary act is as effectual to transfer to the indorsee the right to sue as if it had been the result of legal compulsion."

'Story on Bills, § 196; Story on Notes, § 124; Bayley on Bills, 44; Chitty, 21; 2 Parsons N. & B., 3; Nightingale v. Withington, 15 Mass., 272; Burke v. Allen, 29 N. H., 106 (semble); Frasier v. Massey, 14 Ind., 382; Hardy v. Waters, 38 Me., 450; Taylor v. Croker, 4 Esp., 187; Jeune v. Ward, 2 Stark., 326; Grey v. Cooper, 3 Doug., 65; see ante, §§ 227 et seq.

6

*Story on Notes, § 125; Bayley on Bills, 53; Barrett v. Russell, 45 Vt., 43. 'Jones v. Thorne, 14 Martin, 463.

Estabrook v. Smith, 6 Gray, 570; Robb v. Bailey, 13 La. Ann., 446; Fletcher v. Dana, 4 Blackf., 377; Desha v. Stewart, 6 Ala., 852; Moore v. Denslow, 14 Conn., 235; Absolem v. Marks, 11 Q. B., 19; Russell v. Swan, 16 Mass., 314; Hooker v. Gallagher, 6 Fla., 351.

'Alabama Co. v. Brainard, 35 Ala., 476.