McDonald v. Bailey , 14 Me. 101 ( 1836 )

The opinion of the Court, after a continuance for advisement, was drawn up by

Weston C. J.

The rulo of the Common Pleas, which corresponds also with a rule of this Court, which does not permit the counsel for the defendant, in actions on promissory notes, orders or bills of exchange, to deny the genuineness of his client’s signature, unless thereto specially instructed, is very convenient in practice. It prevents delay; and saves unnecessary expense. A rale to this effect has long been enforced in our Courts; and it is clearly one of those, which the Common Pleas has the power to make, to conduct and expedite its business. It is intended to relieve the plaintiff from the necessity of being prepared with a witness or witnesses, to prove the signature to instruments, of the description before referred to, unless specially denied. We are aware of no reason why the rule should not be applied to such as have a subscribing witness. If he knows other facts, which may furnish ground of defence, the defendant has it in his power to procure his attendance. As the signature was not denied, we are of opinion, that the proof of the execution of the instrument, was properly dispensed with, under the rule.

It has been repeatedly adjudged, that a blank indorsement, by the payee of a negotiable note, transfers the title to a hona fide holder; and that it thereupon passes by delivery, as much as if payable to bearer. The cases cited for the plaintiff, fully warrant this position. The course of proceeding formerly was, to fill up the indorsement at the trial; but this may well be regarded as an unnecessary formality ; and it has accordingly been dispensed with in modem practice.

The effect of an indorsement in blank, is, to transfer the note, and to impose a conditional liability upon the indorser. As against the maker, the plaintiff may set forth the transfer by indorsement,, according to its legal effect, of which the name of the payee, upon the back of the note, will be competent evidence. In the note under consideration, the name of the payee was preceded by the words, “ eventually accountable.” The effect of this was, to hold himself liable as indorser, waiving demand and notice. This was a circumstance which did not restrict or qualify the transfer of the note, and there was no occasion to notice it, in declaring against the maker.

The exceptions are overruled; and judgment is to be entered on the verdict.