
    Henry Strange v. John Ellison.
    If the holder of a promissory note sell or barter it, with the name of a third person indorsed, there is an implied warranty on his part, that the indorsement is genuine, unless it appear, that the transferee took it without reference to that security, or had agreed to run the risk of the indorsement being genuine.
    Tried before Mr. Justice Earle, at Fail-field, Spring Term, 1831.
    
    This was a summary process upon an agreement to deliver a certain quantity of corn and fodder, of the value of seventy-four dollars. Defence, that the agreement had been entered into in consideration of the transfer by plaintiff of a promissory note of one John Gibson, for ninety-four dollars and sixty-three cents, purporting to be indorsed by Tacitus G. Cassity; and that the said indorsement was a forgery.
    It did not appear that the plaintiff was aware of the forgery at the time of the transfer; nor was there any evidence that he had warranted the indorsement, or that he had referred to it as a security. He had however offered the note, with Cassity’s name indorsed, to two other persons, besides the defendant, and had not expressed to either of them any doubt of the indorsement. It was proved also, that Gibson was utterly insolvent at. the time, and that the fact was known by the defendant, who was selling off his stock of corn and fodder on credit, and had given notice, that in all instances an approved indorser would be required. It was either proved, or admitted, at the trial, that the indorsement of Cassity’s name was a forgery. The presiding Judge gave judgment for the. plaintiff; and this was a motion sjp reverse his decree.
    Clarke, for the motion.
    Peareson, contra.
    
   Johnson, J.

delivered the opinion of the Court.

Every one who vends an article, impliedly undertakes that it is what its appearance indicates, and that it is not disguised so as to make it appear what it is not. The principle applies to all sorts of commodities, in whatever form they may exist. Promissory notes are a common article of traffic, and their value is measuref] by the responsibility of the drawer and the indorser. The usual manner of indorsing, is by the superscription of the indorser’s name, which constitutes the evidence of his liability. Finding a name so indorsed, one would necessarily conclude that it was placed there for that purpose; and it would as necessarily be looked to as a part of the security for the debt. If it happen there by fraud or by mistake, and the purchaser take it, ignorant of that fact, he is as much injured and deceived, as if he had been imposed on by counterfeit money; and the liability of the seller is the same.

The note transferred by the plaintiff to the defendant was indorsed with the name of Tacitus G. Cassity. He was solvent, and it was known that the maker was insolvent. The strong presumption is that the defendant took it upon the credit of the indorser alone ; and however that fact might be, in the absence of all information on the subject, he will be presumed to have acted upon the appearances indicated by the note: and according to the rule, the plaintiff was bound to guarantee that these were real and not deceptive. The defendant might have taken upon himself the risk, whether this was or was not the genuine signature of Cassity; but to discharge himself from the liability arising out of the legal presumption, it was incumbent on the plaintiff to show it, and the error in the judgment of the Circuit Court, appears to me to have originated in expecting proof from the defendant, that the plaintiff had warranted it genuine. On this ground therefore the case must go back for a new trial.

Besides this, the plaintiff’s own declarations furnish, in my view of them, very strong circumstances in aid of the legal presumption. He professes himself to be ignorant whether the signature was or was not in the hand-writing of Cassity: he does not pretend that he suggested any doubt about it to the defendant, much less, that the defendant agreed to accept it without that security; and he rests his defence solely on the ground, that he did not trade it as an indorsed note, or in other words, that he did not warrant Cassity’s signature. That, as before shown, is not enough. He was bound to prove that defendant knew it was not Cassity’s hand-writing; or that he had agreed to- run that risk. And taking these declarations all together, it strikes Me very forcibly, that if the plaintiff did not mislead the defendant, by holding out the name of Cassity as a security, he suffered him to deceive himself by the belief that it was.

Motion granted.  