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And the maker cannot deny him to be the real party in interest required by the statute.478

Action by Indorsee.

479

§ 1633. An indorsee may sometimes sue, although the indorser could not, as in the case where he is himself one of the makers, or executor of the deceased maker. 480 So, where he holds as indorsee of a foreign administrator. 481 And the drawee may become an indorsee, and bring suit as such against the drawer and payee, after himself discounting the bill.482 The indorsee may strike out prior indorsements, and sue under any previous blank indorsement.483 So, where a note is indorsed by the payee, A., to B., and reindorsed to A., and afterwards delivered by him to the plaintiff, he may sue as B.'s indorsee or (striking out the indorsement to B.) as indorsee of A.484 So, he may prove a special indorsement to himself from the payee, although he has averred that the note was indorsed in blank to B., and by B. to the payee, and by the payee to him.485

Suit may also be brought by the indorsee for the use of the payee,

So, although the defendant set up ownership in another, who had neither indorsement nor possession. Ball v. Silver, 17 Ind. 539.

478 Blacker v. Dunbar, 108 Ind. 217, 9 N. E. 104. So, too, where the plaintiff is payee of the note and mortgagee in a collateral mortgage. French v. Blanchard, 16 Ind. 143.

479 Byles, Bills, 43; 2 Daniel, Neg. Inst. 220, 415; 2 Pars. Notes & B. 440; Morley v. Culverwell, 7 Mees. & W. 174; Steele v. Harmer, 14 Mees. & W. 831, 4 Exch. 1; Smith v. Lusher, 5 Cow. 688; Sherwood v. Barton, 36 Barb. (N. Y.) 284; Pitcher v. Barrows, 17 Pick. (Mass.) 361; Hapgood v. Watson, 65 Me. 510; Davis v. Briggs, 39 Me. 304; Woodman v. Boothby, 66 Me. 389: Willis v. Neal, 39 Ala. 464; Smith v. Gregory, 75 Mo. 121. See, too, §§ 153, 404. But it has been held that the assignee of such note without indorsement can only sue the makers in equity, Davis v. Merrill, 51 Mich. 480, 16 N. W. 864; for contribution, Stevens v. Hannan, 86 Mich. 305, 48 N. W. 951.

480 2 Pars. Notes & B. 441.

481 Abercrombie v. Stillman, 77 Tex. 589, 14 S. W. 196.

482 Swope v. Ross, 40 Pa. St. 186.

483 2 Daniel, Neg. Inst. 233; Rand v. Dovey, 83 Pa. St. 280. And it is immaterial that the intervening indorsement is under the seal of a corporation. And see §§ 715, 716, supra.

484 Emerson v. Cutts, 12 Mass. 78.

485 Martin v. Warren, 11 Ark. 285.

where it is not otherwise provided by statute.186

And he may sue

as indorsee, although the note was at the time of the indorsement to him in the possession of another as pledgee from his indorser.487 But he cannot bring suit while the note is in the pledgee's posses

sion. **8

An indorsee may sue the maker in an action of debt.489 So, he may bring suit against a surety upon a note made to secure future advances by the payee "and others to whom he may indorse for that purpose," where the note was actually indorsed by the payee to him, and the advances were made by him.490 An indorsee cannot, however, sue the drawer of a draft upon the original consideration.*

Action in What Name.

491

492 and

§ 1634. An indorsee may sue, in general, in his own name, not in the name of his indorser.493 He cannot, at least, use the indorser's name without his consent, unless the paper is nonnegotiable." 494 But it will be sufficient if the consent is given pending In like manner, the payee may recover judgment in the indorsee's name upon consent given by the indorsee pending the

suit.495

486 Walker v. Wait, 50 Vt. 668; the note being subject in such case to the same defense as though the suit were brought by the payor, Barnett v. Logue's Adm'rs, 29 Tex. 282.

487 Fisher v. Bradford, 7 Me. 28..

485 Felton v. Smith, 84 Ind. 485.

489 Camp v. Bank, 10 Watts (Pa.) 130; although the indorsee took the note up after judgment, Howell v. McCracken, 87 N. C. 399.

490 Dulles v. De Forest, 19 Conn. 190.

491 Battle v. Coit, 19 Barb. (N. Y.) 68.

492 Kirkman v. Hamilton, 6 Pet. 20, by statute in NORTH CAROLINA. And see other statutes, supra. § 1631. And an indorsement after maturity will support an action in the indorsee's name. Kyner v. Shower, 13 Pa. St.

444.

493 Bowie v. Duvall, 1 Gill & J. (Md.) 175; Jordan v. Thornton, 7 Ark. 224. On the other hand, after payment by an indorser, a suit already begun by the indorsee may be continued in his name for the indorser's benefit. Mechanics Bank v. Hazard, 13 Johns. (N. Y.) 353.

494 Mosher v. Allen, 16 Mass. 451.

495 Lewis v. Hodgdon, 17 Me. 267. It is for the jury to decide whether the indorser gave plaintiff permission to use its name, and such permission may be implied. Lime Rock Bank v. Macomber, 29 Me. 564.

suit.49 And a plea resisting such action must deny knowledge on the indorsee's part, as well as ratification by him.197

The indorsement of nonnegotiable paper implies power to bring suit in the indorser's name,198 and, in general, suit upon nonnegotiable paper must be brought in the name of the payee," although in some states provision is made by statute enabling the indorsee to sue in his own name.500 And, if a note is negotiable by statute (e. g. being made negotiable at a bank), the indorser may bring suit in his own name, although it is not in terms payable to the "order" of the payee.501

What Indorsement Sufficient.

§ 1635. To authorize suit by an indorsee, he must hold under a sufficient indorsement. And an indorsement made after suit begun is not sufficient,502 although the bill was actually delivered before the commencement of the suit.503 So, if judgment is rendered against the maker, and the note is then taken up by the indorser, and subsequently transferred to another indorsee, the latter cannot bring suit as an ordinary indorsee against the maker. 504 But one who takes a note by indorsement after maturity may sue upon it as indorsee, 505

If the indorsement is to several, they are joint holders, and must sue jointly as such. And it has been held in such case that an indorse

496 Richardson v. Lincoln, 5 Metc. (Mass.) 201.

497 Harpham v. Haynes, 30 Ill. 405.

498 2 Pars. Notes & B. 453. As to the transfer of nonnegotiable instruments and suit upon them, see §§ 655, 656, supra.

499 Barriere v. Nairac. 2 Dall. (U. S.) 249; Matlack v. Hendrickson, 13 N. J. Law, 263; Noland v. Ringgold, 3 Har. & J. (Md.) 216.

500 Goodman v. Fleming, 57 Ga. 350. So, on a sealed note, Lamkin v. Nye, 43 Miss. 241,

501 Muir v. Jenkins, 2 Cranch, C. C. 18, Fed. Cas. No. 9,903.

502 And he cannot obviate the difficulty by changing a special indorsement to another into a blank indorsement. Bank of U. S. v. Moore, 3 Cranch, C. C. 330, Fed. Cas. No. 930. See, too, § 684, supra.

503 Dowell v. Brown, 13 Smedes & M. (Miss.) 43. For transfer after maurity, see § 673, supra.

504 Prest v. Vanarsdalen, 11 N. J. Law, 194.

505 Lyman v. Sherwood, 20 Vt. 42.

ment by one of them to the other will not be sufficient to support an action by the latter. 506 If, however, the original indorsement is to several as trustees, and one transfers his interest to the other two, they may bring suit without joining him.507 So, if the note is inblank by one of the

dorsed to a firm, and afterwards indorsed in partners in the firm name, he may sue alone as bearer under such blank indorsement.508 So, if a note is indorsed to A., B., and C., and A. indorses to B. and C., and they indorse to the plaintiff, it has been held sufficient to sustain an action by him.509 If the note is payable to "our, and each of our, order," the indorsee of either payee may bring suit upon it.510 And, if it is indorsed one-half to A. and onehalf to B., they may bring a joint action upon it.511

ian," 513

§ 1636. The payee's individual indorsement is sufficient, although the note is made payable to him as "administrator" 512 or "guardor as an agent of the real payee.514 But an attorney holding a note for the purpose of suit has no power to indorse it, so as to enable his indorsee to bring suit.515 And, if a note is payable to one as "agent of A.," suit cannot be brought by an assignee under an assignment from A.'s executor.516

Where a note is made "to any person who shall indorse," it will be sufficient for the plaintiff to aver that it was made to A. and indorsed

506 2 Daniel, Neg. Inst. 220; 2 Pars. Notes & B. 440; Estabrook v. Smith, 6 Gray (Mass.) 570; Miller v. Bledsoe, 2 Ill. 530. But see, contra, where the payees were not partners, Regan v. Jones, 1 Wyo. 210. And see § 663, supra. 507 Cartwright v. Gardner, 5 Cush. (Mass.) 273.

508 Benj. Chalm. Dig. art. 142; 2 Daniel, Neg. Inst. 220; Manegold v. Dulau.

30 Wis. 541.

509 2 Daniel, Neg. Inst. 220; 2 Pars. Notes & B. 440; Goddard v. Lyman, 14 Pick. (Mass.) 268.

510 Absolon v. Marks, 11 Q. B. 19.

511 Flint v. Flint, 6 Allen (Mass.) 34. And see § 734, supra.

512 Walter v. Kirk, 14 Ill. 55. De Cordova v. Atchison, 13 Tex. 372. And see § 665, supra.

513 Dorr v. Davis, 76 Me. 301. As to action by an infant payee, see § 278.

supra.

514 Unless denied under oath by the defendant. Habersham v. Lehman, As to transfer by agent, see §§.

63 Ga. 380; GEORGIA (Civ. Code, § 3705). 664, 988, supra.

515 Eggan v. Briggs, 23 Kan. 710.

516 Cocke v. Dickins, 4 Yerg. (Tenn.) 29.

(Ch. 42 by him. 517 But, where an indorsement is of no legal validity (e. g. from husband to wife), the indorsee cannot bring suit to recover possession of the note from a subsequent assignee in bankruptcy of the indorser.518

Action in United States Courts.

unless a suit

§ 1637. Where jurisdiction of the federal courts is invoked on the ground of residence of the parties in different states, the action will not lie, if only one of two joint makers resides in a state different from the plaintiff.519 And it is provided by statute that an assignee cannot bring suit in the United States courts "to recover the contents of any promissory note or other chose in action, might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange." 520 And it has been held that an indorsee cannot bring suit against an alien maker in the federal courts, where his indorser, who was also an alien, could not have sued.": And it is provided that the court shall dismiss the suit, where parties are made or joined, "collusively, for the purpose of creating a case cognizable" in the federal courts.5 But the payee may sue the acceptor, although

522

517 United States v. White, 2 Hill (N. Y.) 59.

521

518 Gay v. Kingsley, 11 Allen (Mass.) 345. As to indorsement by a married woman, see § 288, supra.

519 Doremas v. Bennet, 4 McLean, 224, Fed. Cas. No. 4,001.

520 Rev. St. U. S. § 629. And the indorsee cannot sue, though the indorser was only an accommodation party, and never in possession of the note. Small v. King, 5 McLean, 147, Fed. Cas. No. 12,960. It must appear that the indorser could have sued. Parker v. Ormsby, 141 U. S. 81, 11 Sup. Ct. 912. The statute applies to a check, Coffee v. Bank, 13 How. 183; but not to a bill drawn in one state on another, and indorsed to a citizen of a third state, Buckner v. Finley, 2 Pet. 588. And the statute does not apply to the transfer of a note to a bona fide holder for the purpose of having suit brought in the United States court free from defenses, where the indorser could have sued in that court subject to such defenses, Lanning v. Lockett, 10 Fed. 451; nor to the foreclosure of a collateral mortgage, Tredway v. Sanger, 107 U. S. 323, 2 Sup. Ct. 691.

521 Montalet v. Murray, 4 Cranch, 46.

522 Acts U. S. 1875, c. 137, § 5; Acts U. S. 1887, c. 373, § 35. And see, as to such collusion, Hawes v. Oakland, 104 U. S. 450; Detroit City v. Dean, 106 U. S. 537, 1 Sup. Ct. 560; Farmington v. Pillsbury, 114 U. S. 138, 5 Sup. Ct. 807. The transfer, to be collusive, must be shown to have been for the pur

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