Malbon v. Southard

36 Me. 147 | Me. | 1853

Howard, J. —

The note in this case was negotiable, and was transferred before it became payable, by the payee to the plaintiff, by delivery, and for value. The indorsement by the administratrix of the payee, after his death, would have the same effect upon the negotiability of the note, as if made by him.

Upon the death of the holder, the right of transfer of negotiable paper vests in his personal representative, as well as the power to indorse, and perfect the negotiation of such paper previously transferred by him without indorsement. Rawlinson v. Stone, 3 Wils. 1; same case, cited as Robinson v. Stone, 2 Stra. 1260; Chitty on Bills, 201, (11th ed.) 237; Story on Prom. Notes, § § 120, 123.

There is no evidence that the plaintiff was apprised of any matter tending to discredit the note, or which would constitute a defence to- any portion of it. He must, therefore, be regarded as an innocent indorsee, and bona fide holder for value, and the supposed defence is not available, as against him.

By placing his name upon the back of the note, when not otherwise a party to it, before it was delivered to the payee, and by request of the maker, he became an original promisor ; unless the addition of the words " responsible without demand or notice,” change the character and legal import of his indorsement. It is not perceived that they can have that effect. For, without the addition of those words he became responsible, without demand or notice, by presumption of law, and with it, the responsibility was expressed, in part, but not changed. Colburn v. Averill, 30 Maine, 310; Irish v. Cutter, 31 Maine, 536; Story on Prom. Notes, § 58, and cases cited by the author, and by the plaintiff. The liability of the defendant is, therefore, that of a joint and several promisor.

Defendant defaulted.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.