
    Fitzhugh & al. v. Love’s Ex’or.
    [April, 1806.]
    Bills o( Exchange — Blank Endorsement by Person Not a Party without Consideration — Liability.—If a person, not a party to a bill of exchange, put his name upon it in blank, without any consideration, he is not liable as an endorser.
    Same — Blank Endorsement by Person Not a Party with Considersation — Liability.—otherwise, if there be a consideration for the endorsement.
    Samuel Love instituted an action of debt in the district court of Fredericksburg, against Philip Fitzhugh and Presley Thornton, and declared for “¿272. 15. sterling, the balance due on a bill for ¿[1100 sterling, being the principal of a protested bill of exchange, together with damages thereon at the rate of fifteen per centum, charges of protest amounting to ¿2. 12. 9. sterling, and interest on the said principal at the rate of five per centum per annum, from the *8th day of January, 1795, until the said principal shall be fully paid.” The declaration charges that Philip Fitz-hugh, on the 23d of July, 1794, drew the bill in question, in favour of the plaintiff, or order, on Charlotte and Charles Thornton, of Great Britain, at sixty days after sight. That Presley Thornton at the same time, to give credit to the bill, and in consideration of the value thereof in current money paid to the said Philip Thornton, endorsed it for payment to the plaintiff, who afterwards endorsed it to William Stewart. That on the said 8th January, 1795, a notary presented the bill to Charlotte Thornton and demanded payment, the time limited for payment of the bill, since noted for non-acceptance, being expired; and the said Charlotte having answered in behalf of herself .and the said Charles Thornton, that they had paid ¿827. 5. of the bill and would not pay the balance, the said notary protested it; of all which the said Philip and Presley had notice on the ■- day of April, 1795, from the plaintiff, who had a right to demand the same, the said Stewart having returned to him the said bill. That it was agreed by the said Philip and Presley, that the sum in current money paid for the bill, to wit: ¿[1552, should be considered as if the same were expressed in the said bill as appears by a memorandum of the said agreement taken by Bushrod Washington, esq. profert of which is made.
    M’Carty Fitzhugh and Robert Allason, securities for the appearance of the defendants, by attorney, prayed oyer of the bill and protest, and plead that the defendants did not owe the debt in the declaration mentioned : Upon which there was an issue made up. The jury found for the plaintiff the debt in the declaration mentioned and one penny damages, if the court should be of opinion that the bill of exchange and copy of the protest, both set out in haec verba (the original appearing to have been lost), were sufficient to support the plaintiff’s action, though no notice of protest was proved to have been given till the institution of this suit, it also being proved that the current money value ¿[1562, «should be considered, and the bill have the same effect, as if the said sum had been expressed therein.
    The copy of the bill referred to in the verdict was payable in London, and endorsed as follows: “Presley Thornton,” “pay to Adam Stewart or order, Samuel Love.” “Adam Stewart.” Besides which, there was a receipt from James Esdal & Co. for the ¿827. 5.
    
      Instead oí the original protest, under the seal of the protesting notary, the verdict refers to a copy certified by a notary of Liverpool to be a true copy of the London notary’s protest, the original reiriaining in the office.
    The expenses (all of which are necessarily comprehended in the plaintiff’s demand of ¿2. 32. 9. for “charges of protest ”) are stated at the foot of the copy, and are as follows :
    Prot. for non-acceptance, ¿0 1 6
    
    Prot. for non-payment, 0 16 0
    Postage, 2 6
    Commission, 17 2
    Charges of notarial copy at Liverpool, S 7
    
      £2 12 9
    The memorandum of the agreement taken by B. Washington, and stated in the declaration, is in the record. That agreement was made two months after the bill was drawn, and it is merely that the 1st, 3d and 4th bills should be considered as if the current money had been expressed therein, as it was in the 2d of the same tenor and date ; but nothing is said about the sum in current money. The court gave judgment for the plaintiff; and the defendants appealed to the court of appeals.
    Botts, for the appellant.
    The suit is against the drawer and endorser jointly, which the act of assembly does not authorize ; and therefore the action must fail. But Thornton’s endorsement did not bind him, without a consideration ; and none is proved. The agreement to change the current money into sterling, is not established j nor the charges of ^protest supported by proper testimony. The notarial copy of the protest is not evidence, although the original was lost; for the deposition of the n otary ought to have been taken. The plaintiff was not entitled to bail; and as it was an action of debt, the judge had not authority to direct it. 2 Wash. 181. Notice of the protest ought to have been given to the drawer and endorser both. The holder gave time to the debtor by receiving part of the money; and, therefore, the drawer and endorser are discharged. Lovelass’s Bills, 59, 77. The verdict is uncertain, and refers the evidence to the court, instead of finding the facts.
    Warden and Randolph, contra.
    It has always been understood, since the passing of the act of 1792, that the holder of the hill might sue the drawer and endorser jointly. 2 Tuck. Black. 467. The endorsement of Thornton bound him, as a consideration will be presumed, and the effect was to deceive others. 7 T. Rep. 761. Scott v. Call, &c. in this court, [4 Call, 402], The notice of the protest was sufficient, as there were no effects of the drawer in the hands of the drawee. Chitty, 87. The agreement to change the current money into sterling, was not objected to at the trial, nor proof of the charges of protest called for ; and, therefore, neither will be permitted now. The verdict is certain enough, as it reserves points of law, and not evidence, for the judgment of the court. If Thornton he discharged, the judgment ought to be affirmed against the drawer. Cur. adv. vult.
    
      
      Hills, Notes and Checks. — See monographic note on “Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622. The principal case is reported in 3 Am. Dec. 568, with an extensive note appended.
    
   TUCKER, Judge.

The declaration charges, that Philip Fitzhugh drew a bill of exchange in favour of Samuel Love, or order, on certain persons in Great Britain. That afterwards, on the same day, Presley Thornton, at the special instance and request of the said Philip, and in order to give a credit to the said bill of exchange, and to induce Love to receive it from Fitzhugh, and in consideration of Love’s paying to Fitzhugh the value in current money, and actually *received by Fitzhugh, did, by his endorsement, made on the said bill, according to the custom of merchants, endorse the same for payment to the said Samuel Love: which was partly paid, and protested for the balance. Whereupon this suit is brought upon the act of assembly. Plea, nil debet, and issue. The bill of exceptions states a copy of the bill and protest made by a notary public in Liverpool, made, as he alleges, from the original bill and the protest thereof, made in London : By which it appears, that there was no special undertaking on the part of Thornton, to warrant the payment; but a mere endorsement of his name, prior to that of Samuel Love, in whose favour the bill was drawn. The jury found a verdict for the plaintiff, if the court should be of opinion that the bill of exchange and the copy of the protest, (the original appearing to have been lost,) are sufficient to support the plaintiff’s action.

The question referred to the court by the jury, so nearly resembles that which must have occurred to the court itself upon the declaration, that it may be regarded as, in substance the same. Which, is this, Whether Presley Thornton is an endorser of the bill in the sense and meaning of the custom and usage of merchants, or not?

A bill of exchange may be defined an open letter of request, addressed by one person to a second, desiring him to pay a sum of money to a third, or to his order ; or it may be made payable to bearer. The person who makes the bill, is called the drawer : He to whom it is addressed, the drawee ; and if he undertakes to pay it, he is then called the acceptor : The person to whom it is ordered to be paid, is called the payee; and, if he appoints another to receive the money, that other is called the endorsee, as the payee is, in respect to him, the endorser. Kyd’s Bills Ex. 3, 4.

Endorsement is a term known in law, which by the custom of merchants, transfers the property of the bill to the endorsee. Cunningh. Bills, 57 ; 3 Bac. Ab. 609; 4 Bac. Ab. 703.

*Bills payable to bearer are transferred by delivery. But to transfer those payable to order, as this bill is, it is necessary, in addition to delivery, that there should be something by which the payee may appear to express his order. This additional circumstance is an endorsement. Kyd, 88.

Every transfer implies a property in the person transferring, or an authority to make it, given by him in whom the property is vested. In this case, it is not pretended that Thornton ever had any property in the bill ; nor was he the agent of any person having a property in the bill. He, therefore, was not an endorser according to the custom of merchants.

At the time he wrote his name on the bill, it was incapable of being' transferred, but by the previous endorsement of Love the payee. Thornton was neither drawee nor payee, nor assignee nor endorsee, at that time. His endorsement, therefore, was a mere nullity, according to the custom of merchants. Upon every other ground, it was a nudum pactum. He received no consideration for warranting the payment of the bill, nor is any legal consideration charged. He was, therefore, not liable for the bill.

The action is joint. The plea is joint. The judgment is joint. It cannot be severed in this action. Thornton, then, not being liable, the judgment is erroneous, and must, I conceive, be wholly reversed. No opinion is, therefore, necessary as to the validity of the evidence. I shall only say, an attested copy by a notary public in New York or Norfolk, would have been just as good evidence, as this copy by a notary in Liverpool, whose attestation, as it respects a bill of exchange on London, and protested there, is perfectly extra ofScial; and, consequently, no evidence. If the original were lost, why was not an attested copy produced from the office of the notary in London, who made the protest?

FLEMING, Judge,

concurred that the judgment ought to be reversed; for the case was not like that of Call v. Scott, *4 Call, 402; because, there, the consideration for the endorsement expressly appeared in the proceedings; and, consequently, the endorsers were clearly liable.

CARRINGTON, Judge.

Thornton was neither payee, nor had any interest in the bill; and, therefore, he was not an endorser within the meaning of the act of assembly, allowing an action of debt against the endorser : nor was he liable upon the bill in any action, as there was no consideration for the endorsement proved. In which respect, it differs from the case of Call v. Scott: for, in that case, the consideration for the endorsement appeared in the proceedings ; and, therefore, the whole court thought the endorsers liable. Neither Mr. 'Washington’s memorandum of the agreement to change the current money into sterling, nor the notarial copy of the protest ought to have been allowed to go to the jury in this case : and, upon the whole, I think that the judgment is erroneous ; and that it ought to be reversed.

LYONS, President.

The declaration contains no ground for an action of debt upon the act of assembly against Thornton ; for if he had been liable at all, an action upon the case would have been the proper remedy. But he was not liable ; for it is not proved that there was any consideration for his endorsement; and, therefore, it is not like the case of Call v. Scott: for, in that case, the consideration appeared in the proceedings. The notarial copy of the copy ought not to have been allowed to go to the jury in the present case ; for there is nothing to shew, that a more authentic copy might not have been procured. I concur that the judgment should be reversed.  