Way v. Richardson
69 Mass. 412
Mass.
1855
Check Treatment
Shaw, C. J.

The evidence offered by the defendant was rightly rejected. Independently of the consideration that it was not specified in the answer, the evidence would have constituted no defence. The action was upon a note made by the defendant, payable to his own order, and by him indorsed in blank, and then by Wetherbee indorsed in blank, by which the plaintiff, if holder, had a right to fill up the indorsements, and make the note payable to himself, as second indorsee, which we are to presume was done, or considered as done, at the trial. The genuineness of the signature and indorsements was admitted. This, with the production of the note, was prima facie evidence of title, and good, unless rebutted; for, although Wetherbee’s indorsement was “ without recourse,” yet this was as effective to transfer the note, as if those words had not been used; it was a blank indorsement.

*414The plaintiff, by his attorney, whose authority to appear it was then too late to contest, produced the note at the trial; the plaintiff’s possession must be presumed to be lawful, and to have existed from the time of the indorsement, until the contrary appeared; and no evidence to the contrary was offered. It was not competent for the defendant to deny that the plaintiff was the owner and holder of the note, without traversing the signature, or the indorsement, or the delivery of the note, which he did not offer to do.

The plaintiff was not bound to prove that he gave value for it; the first indorsee might have given it to him, or authorized him to sue on it as his trustee. If the plaintiff’s possession of the note was lawful, it must have been delivered to him by the holder.

Had the defendant even proved; what in his answer he proposed to prove, that the note was indorsed to the plaintiff after it was due, this would not have been of itself a defence. A note does not cease to be negotiable and transferable by indorsement or delivery, when it becomes due. Such proof would merely have let in the defendant to proof that it had been paid to some antecedent holder, or that he had a good defence against the plaintiff’s indorser. But no offer was made of any such proof.

The cases cited by the defendant afford no authority to sustain a contrary view. In Richardson v. Lincoln, 5 Met. 201, there was a constructive delivery of the note to the plaintiff’s attorney, simultaneous with the indorsement. In Emmett v. Tottenham, 8 Exch. 884, the decision was placed distinctly on the ground that the action was brought upon a copy of the note, and that there was no delivery of the note to the plaintiff, or to- any one as his agent, until some time after the commencement of the action. Exceptions overruled.