23 N.C. 219 | N.C. | 1840
This was an action by the second indorsee against the first indorser of a bill of exchange. The execution of the bill by the drawer, the acceptance, due demand and notice were all admitted to be complete. The defendant, however, contended that as the plaintiff had once owned the bill as second indorsee, and had assigned it "without recourse," he could not again obtain a title to it, so as to give it in evidence on this declaration, and of this opinion was the judge: because, he said, as the plaintiff had once made a restrictive indorsement, and by it had escaped from liability on the bill, he could not again obtain a title, so as to enable him to sue on it as indorsee. The judge said that when an indorsee indorses over, and afterwards takes up the bill in discharge of his liability, he is then remitted to his former right, and may strike the subsequent indorsements and sue as indorsee, and the fact of his holding the bill raises the presumption of his having taken it up in discharge of his previous liability; but, in this case, the indorsement by the plaintiff being "without recourse," repelled such a presumption, and he had no title. The same arguments have been pressed upon us in this Court by the defendant's counsel. But the authorities cited only show that an indorser in full, who takes up the bill, is remitted to his former title, and may strike out his indorsement and sue as indorsee those standing before him on the bill. The law presumes that he has given value for it, therefore will permit him to strike out the names of persons who apparent own and have the legal title to it. But the restrictive indorsement of French in this case was in blank; it directed payment to be made to no particular person, firm, or corporation, which is necessary to make an indorsement special or in full. The next indorsement was also in blank. The bill, after it was so indorsed in blank, assumed the character and had the effect thereafter of a bill payable to bearer. Chitty on Bills, 136; Byles on Bills, 84; Peacock v. Hodges, Douglass, 633; Francis v. Mott, Doug., 612. The two first and two last (222) indorsements being special or in full, did not prevent the bill assuming the character of a bill payable to bearer, after it had been once indorsed in blank, Smith v. Clarke, 1 Esp., 180; Holmes v.Hooper, Bay., 158; Chitty on Bills, 136; for it then became payable toBearer as against the drawer, the acceptor, the payee, the blank indorser, and all indorser before him. Byles on Bills, 85. The bill passed *171 as currency in the market, and French had as much right to purchase it as anybody else. He being the holder, the law implies, until something be shown to the contrary, that he gave value for it, or rather came fairly and legally by it. Byles on Bills; 60; 3 Kent Com., 77. The plaintiff had therefore acquired a legal title to the bill by delivery. The restrictive indorsement by French did not break the chain of title. The idea of the judge, that French must have been once liable, as indorser on the bill, and that he must have taken it up in consequence of that liability, before he could gain a title to sue on it, we think is erroneous. He, being impliedly the bona fide holder, had a right to strike out all the indorsements below that to himself, and declare as the second indorsee. Smith v. Clarke, 1 Esp., 180.
PER CURIAM. Nonsuit set aside, and judgment for plaintiff on the verdict.
Cited: Pugh v. Grant,
(223)
