
    
      SPRIGG vs. CUNY'S HEIRS.
    
    Appeal from the court of the 6th district.
    Repossession of a note once special-&d tj^ns®¡1r’ °f ⅞* WaS
    0f a negotia-°wLby dorsement, may main-it, without filling up the ««meto h»m-self. ,
   Mathews, J.

delivered the opinion of the oourt. This^suit is brought on two negotiable notes, the amount of which the plaintiff claims from the defendants, as representatives of the first endorser, who is dead. He obtained judgment against them in the court c i-ii from which they appealed.

The pleadings and evidence of the cause shew that the notes in question had been regularly endorsed, in full from the payee down to the present claimant, who endorsed them in blank, which endorsement was never filled ap to any person. They passed into other hands, under the blank endorsement, who caused them to be protested for non-payment, and notice to be given to the endorsers. No re-transfer from the last holder to the present plaintiff, appears to have been made in writing; but after he had obtained possession of ° r the notes, he filled up his own blank endorsement to himself

lhis act, as it appears to us, cannot better the situation of the appellee. He could by it create no more title in himself, than that which he had by the re-delivery of the notes, and possession acquired under it, as a bona fide holder. According to several decisions of this court, the drawer of a bill of exchange, accepted in favour of the payee^and endorser of a note of hand, when the endorsement has been filled up to the endorsee, cannot maintain actions on such instruments without proving a re-transfer of the title and interest thus transferred and acquired by the latter. In those cases, the mere possession of the bill or note, unaided by any proof of the extinguishment of the rights acquired by the holders or the trans' ferors, was considered not even as prima facie evidence of title in the latter. See 1 N. S. p. 301 & 273.

It has been also decided by this court, that the holder of a negotiable note, under a blank endorsement, may maintain a suit without filling up the same to himself He is considered as having obtained a full and complete title to the instrument by delivery, , when supported on regular endorsements. And it is immaterial through how many hands it may have passed in pursuance of this simple mode of transfer.

According to these decisions, the plaintiff must fail in the present action, unless a just and reasonable distinction can be drawn between the situation of an endorser in blank, and one who has made a full and complete transfer, expressed in writing. This distinction, we are of opinion, may be fairly made when a note is handed over from one holder to another. Under a blank endorsement, possession alone is evidence of title, at least prima fade. If it should return in the same manner to the last endorser in blank (whose endorsement, it is true, has transferred his right to all and every person who may become its holder, and remains transferable, by simple delivery, to all the world) what reason can be adduced to prove that the last endorser may not, in this manner, be revested with his original rights? Until the re-delivery, he had no title, because that was transferred by his endorsement But this being in blank, the signature of no other person was necessary to keep the paper in circulation: whereas, when r r r > ’ an endorsement is full and perfect, the signature of the endorser is absolutely necessary to transfer right and title to any other person; and would be necessary in a re-transfer to the endorsee, or proof of payment under protest; but ought not to be required in cases of blank endorsement*

Thomas for the plaintiff—Johnston for the defendant.

It is, therefore, ordered, adjudged, and decreed, that the judgment of the district court be affirmed with costs.  