And he may recover,

ment, or was afterwards taken up by him.608 notwithstanding an indorsement made by him for collection,609 although such indorsement is a special one.610 And the defendant, after once admitting the plaintiff's title in his pleadings, cannot call it in question by reason of his indorsement to a collecting agent.611

An indorser may even bring suit without actual possession, if the indorsee holds the bill merely as his agent or trustee, and for the purpose of collection.612 But an indorser cannot sue where the title to the bill, as well as the possession, is in another. 613 So, where the drawer of a bill has agreed to pay a certain sum per month on it to the payee, the agreement is incidental to the bill itself, and cannot be enforced by the payee after transfer of the bill."1

614

§ 1646. Where the indorsement by the plaintiff was for collection only, reindorsement to him is, in general, unnecessary.615 And

cos Picquet v. Curtis, 1 Sumn. 478, Fed. Cas. No. 11,131; Mottram v. Mills, 1 Sandf. (N. Y.) 37; Page v. Lathrop, 20 Mo. 589; Kerrick v. Stevens, 58 Mich. 297, 25 N. W. 199; Stephens v. McNeill, 26 Barb. (N. Y.) 651; Merz v. Kaiser, 20 La. Ann. 377; Leitner v. Miller, 49 Ga. 486; Brady v. White, 4 Baxt. (Tenn.) 382; Beeson v. Lippman, 52 Ala. 276; Anniston Pipe Works V. Mary Pratt Furnace Co., 94 Ala. 606, 10 South. 259; Daniel v. Royce, 96 Ga. 566, 23 S. E. 493; Kerrick v. Stevens, 58 Mich. 297, 25 N. W. 199. So, after an assignment and redelivery. Haug v. Riley (Ga.) 29 S. E. 44.

609 2 Daniel, Neg. Inst. 234; 2 Pars. Notes & B. 441; Best v. Bank, 76 Ill. G08; Dickinson v. Burr, 15 Ark. 372; Habersham v. Lehman, 63 Ga. 380; Dann v. Norris, 24 Conn. 333; Locke v. Silk Co., 37 Mich. 479.

610 Chautauqua Co. Bank v. Davis, 21 Wend. (N. Y.) 584. And that it was for such purpose may be shown by parol evidence. Wright v. Boyd, 3 Barb. (N. Y.) 523.

411 Sawyer v. Macaulay, 18 S. C. 543.

612 Byles, Bills, 410; Chit. Bills, 606; Stones v. Butt, 2 Cromp. & M. 416, 2 Dowl. 335; Dabbs v. Humphries, 10 Bing. 446, 1 Scott, 325, and 4 Moore & S. 285; Ancona v. Marks, 7 Hurl. & N. 686; National Sav. Bank Ass'n v. Tranah, L. R. 2 C. P. 556.

13 Campbell v. Humphries, 3 Ill. 478; Guilfont v. Parish of Ascension, 28 La. Ann. 413; Johnson v. English, 1 Stew. (Ala.) 169; Hunt v. Stewart, 7 Ala. 525. At least not without direction or consent of the owner. Bragg v. Greenleaf, 14 Me. 395. But see Gray v. Wood, 2 Har. & J. (Md.) 328.

614 Florence v. Drayson, 1 C. B. (N. S.) 584.

615 Dugan v. U. S., 3 Wheat. 172; Picquet v. Curtis, 1 Sumn. 478, Fed. Cas. No. 11,131; Norris v. Badger, 6 Cow. (N. Y.) 449; Barbarin v. Daniels, 7 La.

479.

he may sue without alleging or proving any retransfer,616 although the indorsement by him is a special one,617 and followed by other special indorsements.618 So, if he has indorsed the note in blank, and it is retransferred to him by delivery, he may bring suit upon his posses sion without filling the indorsement to himself."19

620

On the other hand, a reindorsement is necessary in some states to enable a plaintiff to recover on a note indorsed by himself," especially where he has indorsed the note specially to another. 621 And in such case he cannot bring suit against his immediate indorser, after suit has been brought by his indorsee against the maker, and judg ment rendered in such suit in the maker's favor on proof of payment already made by him to the payee.622

Action by Surety-Joint Debtor.

§ 1647. Where a bill is taken up by a surety or guarantor or by an accommodation party, or is paid supra protest, it is not extinguished, and the party paying it may sue prior parties.23 So, if one joint maker pays a note, he may sue his co-makers for contribution; 62+ or

616 Brinkley v. Going, 1 Ill. 366.

617 Rider v. Taintor, 4 Allen (Mass.) 356; Wickersham v. Jarvis, 2 Mo. App. 279; Pitts v. Keyser, 1 Stew. (Ala.) 154.

618 Cox v. Simms, 1 Cranch, C. C. 238, Fed. Cas. No. 3,306; Glasgow v. Switzer, 12 Mo. 395.

619 Sprigg v. Cuny's Heirs, 7 Mart. N. S. (La.) 253.

620 Hart v. Windle, 15 La. 265; unless the indorsement appears to be for collection, Dicks v. Cash, 6 Mart. N. S. (La.) 45.

621 Bright v. Hand, 16 N. J. Law, 273; Lawrance v. Fussell, 77 Pa. St. 460; Southern Bank v. Mechanics' Sav. Bank, 27 Ga. 252; Robson v. Earley. 1 Mart. N. S. (La.) 373.

622 Welch v. Lindo, 7 Cranch, 159.

623 For actions by surety, see chapter 29; also, §§ 1435, 1436, supra. So, by guarantor, § 862; and by payor supra protest, § 1437. But a bank paying a customer's acceptance, which is made payable at his banking house, must sue the acceptor for the consideration, and not as a payor for honor. Holroyd v. Whitehead, 5 Taunt. 444, 3 Camp. 530. And if the maker's bail pays the note he is like a payor supra protest, and cannot sue the indorsees. Hull v. Pitfield, 1 Wils. 46; Chit. Bills, 609.

624 Hoyt v. Lock, 41 Ill. 119; Judd v. Small, 107 Ind. 398, 8 N. E. 284. But the suit for contribution cannot be brought or continued in the payee's name after payment in full by one joint maker. Hendrickson v. Hutchinson,

for exoneration, if he signed it for the accommodation of his comaker.625 So, if one of two joint accommodation indorsers pays a note after it has matured and been taken up by a guarantor, he may still have his action for contribution against his co-indorser.626

In general, the acceptor of a bill is the party primarily liable. But, if an accommodation acceptor pays the bill, he has his action against the drawer, whom he accommodated, although such action is not on the bill itself.627

Action by Bearer.

§ 1648. Possession of a bill or note carries with it presumption of title in the holder,628 whether it is payable on its face to the bearer,629 or is so payable in effect by reason of a blank indorsement by the payee or a subsequent indorsee holding the legal title.630 And the presump

29 N. J. Law, 180. And see § 1426, supra. And the action must be for money paid, and not on the note. Miller v. Zeigler, 3 Utah, 17, 5 Pac. 518.

625 Wheeler v. Young, 143 Mass. 143, 9 N. E. 531. And see § 1426, supra. And such suretyship may be averred in Indiana without setting out a copy of the note. Porter v. Waltz, 108 Ind. 40, 18 N. E. 705. €26 Steckel v. Steckel, 28 Pa. St. 233.

627 Chit. Bills, 609; 2 Daniel, Neg. Inst. 219; 1 Edw. Bills & N. § 522; 2 Pars. Notes & B. 460; Young v. Hockley, 3 Wils. 346; De Barry v. Withers, 44 Pa. St. 356. But the bill may be set out in the declaration as an inducement. Griffin v. Lawton, 54 Ga. 104. And his possession of the bill is presumptive evidence of his right to sue. Hunter v. Kibbe, 5 McLean, 279, Fed. Cas. No. 6,907. But see 2 Daniel, Neg. Inst. 239; Jewell v. Parr, 13 C. B. 909. And the acceptor's assignee may sue in his own name upon an express promise made to him. De Barry v. Withers, supra.

628 King v. Gottschalk, 21 Iowa, 512; Morss v. Gleason, 2 Hun (N. Y.) 31; Long v. Crawford, 18 Md. 220; Sawyer v. Moran, 3 Tenn. Ch. 35; Cheney v. Stone, 29 Fed. 885.

629 James v. Chalmers, 6 N. Y. 209; Rider v. Duval, 28 Tex. 622. So, a check, McLean v. Banking Co., 9 App. Cas. 95; Townsend v. Billinge, 1 Hilt. (N. Y.) 353; or coupon, Philadelphia & R. R. Co. v. Smith, 105 Pa. St. 195.

630 Dean v. Hewit, 5 Wend. (N. Y.) 257; Porter v. Gunnison, 2 Grant, Cas. (Pa.) 297; Little v. O'Brien, 9 Mass. 423; Way v. Richardson, 3 Gray (Mass.) 412; Bedell v. Carll, 33 N. Y. 581; Lohman v. Bank, 87 Ill. 616; Whitten v. Hayden, 9 Allen (Mass.) 408; Griffon v. Jacobs, 2 La. 193; New Orleans Canal & Banking Co. v. Bailey, 18, La. Ann. 676; Sterling v. Bender, 7 Ark. 201; Leitensdorfer v. Webb, 1 N. M. 34. But a formal objection that the action should have been brought in the bearer's (and not in the payee's) name

tion from possession arises whether the bill is acquired before or after maturity.631 But the plaintiff must be in possession before suit brought by him.632 It is not necessary, however, to fill the indorsement specially to the plaintiff.

633

In like manner a note payable to "A. or bearer" is, in effect, payable to bearer, and may be sued upon by any holder in possession,634 although the holder of such a note was formerly required, at common

636

law, to prove his title.635 He may bring suit either in his own name or in that of the nominal payee.' And even where he holds as trustee for another, and the note has never been delivered to A., he may bring suit for the use of the party beneficially interested.*** So, if he holds as agent of A. for collection, he may bring suit as bearer. 638 But, where a note is payable to a designated bank or cannot be taken at a late day in the suit, when a fresh suit would be barred by the statute of limitations. Jones v. Martis, 13 Pa. St. 614.

631 James v. Chalmers, 6 N. Y. 209; McCann v. Lewis, 9 Cal. 246; Rankin v. Woodworth, 2 Watts (Pa.) 134; Pugh v. Grant, 86 N. C. 39; although this appears on the instrument by the date of a guaranty indorsed after maturity by the payee, Smith v. Schanck, 18 Barb. (N. Y.) 344. So, if a nonnegotiable note is indorsed in blank after maturity, the indorsee may sue the indorser in his own name. Leidy v. Tammany, 9 Watts (Pa.) 353.

632 Emmett v. Tottenham, 8 Exch. 884; Hovey v. Sebring, 24 Mich. 232. 633 Palmer v. Bank, 78 Ill. 380; Owen v. Arrington, 17 Ark. 530; although the holder is merely a collecting agent, Laflin v. Sherman, 28 Ill. 391. And he may fill up the blank indorsement with his own name, Orr v. Lacy, 4 McLean, 243, Fed. Cas. No. 10,589, or with the name of any other person, Agee v. Medlock, 25 Ala. 281. And see $708 et seq., supra. But if he indorses it to a bank for collection, and it is returned with the indorsement uncanceled, he cannot sue in the name of the bank. Watson v. Bank, 4 Metc. (Mass.) 343.

634 See §§ 159, 654, 698, supra.

635 Hinton's Case, 2 Show. 235.

636 Ware v. Key, 2 McCord (S. C.) 373. And any subsequent holder may sue in his own name upon a guaranty indorsed to "A. or bearer." Ketchell v. Burns, 24 Wend. (N. Y.) 456.

637 Boardman v. Roger, 17 Vt. 589. But in case of a nonnegotiable note to "A. or bearer," parol evidence is inadmissible to show an agreement on delivery to B., that he might sue as bearer. Whitwell v. Winslow, 134 Mass. 343. But the equitable owner may sue on such a note, Cobb v. Bryant, 86 Ala. 316, 5 South. 586; although he could not if it was negotiable, ALABAMA (Code, § 1761).

638 Brigham v. Gurney, 1 Mich. 349.

bearer, the receiver of the bank holding under a judicial appointment cannot sue as bearer, but must bring suit in the capacity in which he holds the note." 639 On the other hand, if the note is payable to a fictitious payee, the holder cannot bring suit upon it as bearer against a party having no notice of the fictitious character of the payee.". But any holder may sue as bearer of a note made payable "to order" without designating any payee.641

Action by Owner.

§ 1649. The title and possession should unite in the party who brings suit; the title being in some cases presumed from the fact of possession, as we have seen. The action should be by the party who is entitled to receive the contents of the bill." 642 But the defendant cannot question the plaintiff's title, except on the ground of bad faith in the plaintiff, or prejudice to the defendant's rights. Thus, where suit is brought on a note by a national bank as purchaser, the defendant cannot question its title on the ground of a want of cor639 Bradford v. Jenks, 2 McLean, 130, Fed. Cas. No. 1,769.

640 See § 164, supra. So, by statute in NEW YORK. Maniort v. Roberts, 4 E. D. Smith, 83. And there is no use of feigning to hold by indorsement from such fictitious payee. Foster v. Shattuck, 2 N. HI. 446.

641 Davega v. Moore, 3 McCord (S. C.) 482.

642 Byles, Bills, 410; 2 Daniel, Neg. Inst. 235; 2 Pars. Notes & B. 436; Emmett v. Tottenham, 8 Exch. 884; Jungbluth v. Way, 1 Hurl. & N. 71. But it is sufficient if he holds under a blank indorsement as executor, Tisdale v. Maxwell, 58 Ala. 40; or receiver, Haxtun v. Bishop, 3 Wend. (N. Y.) 13; or under a general assignment, Burnap v. Cook, 32 Ill. 168; or by inadvertence of its clearing-house clerk in marking a note "Paid," without funds to meet it at the plaintiff's bank where it was made payable, Manufacturers' Nat. Bank v. Thompson, 129 Mass. 438. And an indorsee may sue for the payee at his request after payment by him, and not be subject to the defense of usury between the original parties. Brigham v. Marean, 7 Pick. (Mass.) 40. The legal title, and not the beneficial interest, is the thing considered. Henderson v. Davisson, 157 Ill. 379, 41 N. E. 560.

643 Benj. Chalm. Dig. art. 141: 2 Daniel, Neg. Inst. 228; 2 Pars. Notes & B. 437; Pearce v. Austin, 4 Whart. (Pa.) 489; Guernsey v. Burns, 25 Wend. (N. Y.) 411; Caldwell v. Lawrence, 84 Ill. 161; Scionneaux v. Waguespack, 32 La. Ann. 283; Case v. Watson, 21 La. Ann. 731; Richardson v. Fenner, 10 La. Ann. 599; Thompson v. Cartwright, 1 Tex. 87. But not where the note was wrongfully obtained by the holder from the owner. Lockridge v. Nuc

kolls, 25 Ill. 178.