
    Ferguson vs. Childress.
    1 Where a person endorsed his name on a blank piece of paper, with the intention that it should he filled up as a promissory note, and the maker should deliver it, and it was so filled up and delivered; it is held that the endorsement and intention with which such endorsement was made, authorized the maker to fill it up and deliver it, and the endorser is held liable therefor. The same rule applies to bills single.
    2. Where there was'an agreement between the maker and the holder of endorsed paper, ‘ that" the maker should confess judgment, and the holder stay execution for a given period, it is held that this agreement did not discharge the endorser; first, because it did not stipulate for delay longer than the law suffered; and, secondly, because there was no consideration recognized by law to support the agreement.
    The declaration avers the execution of a bill single, by Russwurm to Ferguson for six hundred dollars, payable at the Planter’s Bank, and the endorsement and delivery of said bill single by Ferguson to Childress, its protest, and notice thereof to the endorser.
    To this declaration the defendant pleaded, first, that he endorsed a blank piece of paper, with the intention that it should be filled as a promissory note for the accommodation of Russwurm, the maker, and that it w.as filled up as a bill single, and not delivered by him; second, that plaintiff agreed with the maker, Russwurm, that if he would confess judgment ón the bill single, and other claims against him, held by plaintiff, he would stay execution for the period of six months, and that Russwurm, without the consent of the defendant, did confess judgment, and the defendant did stay execution, according to the agreement.
    To these pleas there were demurrers and joinders. Judgment was given for the plaintiff by the presiding Judge. The defendant appealed.
    
      E. A. Keéble, for plaintiff in error.
    
      H. M. Burton, for the defendant in error.
   Turley, J.

delivered the opinion of the court.

There is no error in the rendition of the judgment in the court below, in this case. The pleas demurred to, are all bad in law, and constitute no legal defence to the action.

They present two questions. 1. That the bill single, as the endorser of which the plaintiff in error was sued, was blank when it was endorsed, and was never, after it was filled up and sealed by the obligor, delivered to the endorser, and, therefore, the obligation is void for want of a delivery.

The bill single, endorsed by the plaintiff, is a negotiable paper by statute, and though it never was delivered to the endorser after it was signed and sealed, yet it was to the endorsee, and this is sufficient, and must be, if the negotiability of such paper is. to be maintained. It has never been questioned, but that a blank paper endorsed, may be filled up as a promissory note, and delivered to the endorsee, and that in such ease, the endorser is responsible for its payment, though he never saw it after it was filled up ; for how is the endorsee to know whether it was endorsed before or after it was filled up.

To require him to ascertain the fact upon his own responsibility would destroy the negotiability of such paper, and it would be impossible to make enquiry in the many instances in which such paper is thrown into market. This is equally true of bills single, as of promissory notes, and we are constrained to hold, that if a delivery of such instrument in its common law sense, as applicable to deeds, is held to be necessary, a delivery to the endorsee as the agent authorized by the endorsement to receive it, must be sufficient. Perhaps it was folly to retain the sanctity of a seal, after the instrument was made negotiable.

2. After the bill single fell due, the obligor confessed a judgment thereon in favor of Childress, the endorsee, amalgamating the amount thereof, with other claims, due said Childress, he agreeing to stay execution six months. This, it is contended, discharged the endorser.

We do not think so. We do not look upon this as a contract for delay; because, in the first place, the delay allowed was no greater than' what the law would have suffered, if suit had been brought at the term at which judgment was confessed, in which case supposing the utmost expedition which the law allows, the judgment would have been rendered at the subsequent term, four months thereafter, and the execution thereon, returnable to the next, which it would be under the confessed judgment. Second, the promise to delay was supported by no consideration, recognized by law, and a specific execution of it, could not have been enforced. So that in point of fact, the hands of the endorser were not tied by it, and the endorser, therefore, not discharged thereby. We, therefore, affirm the judgment of the Circuit Court.  