
    Josiah Blakely versus Edward Grant.
    Where the payee of a hill of exchange had endorsed his name on the bill, under the following words, “ Should the tdthin exchange not be accepted and paid agreeably to its contents, I hereby engage to pay the holder, in addition to the principal, twenty per cent, damages,” it was holden, that a bona Jide holder might insert, above such stipulation, a direction to pay the contents to his order, for value received.
    An endorsee of a bill of exchange cannot maintain an action thereon against the drawer or acceptor, without proving the signature of the payee.
    Where notice of a bill being dishonored is necessary to charge the party sued, an allegation and proof of due diligence are tantamount to notice.
    This was an action on a foreign bill of exchange, sued by the plaintiff as endorsee of the payee, against the defendant as the drawer.
    On the trial, upon the general issue, at the sittings after the last May term in this county, before Parker, J., a verdict was taken by consent for the plaintiff, subject to the opinion of the Court on a case agreed by the parties.
    From the case, it appears that the bill was drawn by the defendant, whose signature is admitted, on Messrs. John Grant if Son, for 900 dollars, payable, in sixty days, to the order of Dominique Lajus. On the back of the bill was the following endorsement; “ Should the within exchange not be accepted and paid agreeably to its contents, I hereby engage to pay the holder, in addition to the principal, twenty per cent, damages ; ” signed Dom- [ * 387 ] inique Lajus. — The signature of the payee was neither proved nor admitted. The bill was duly presented fat acceptance, and protested for non-acceptance. The drawer having been absent from the state for several years, a written notification of the refusal to accept was left at his last dwelling-house, none of his family then residing there; but this notice was in fact received by his wife.
    The cause stood continued for the opinion of the Court until this term; and now Emery, tor the defendant, moved that the verdict be set aside, and a nonsuit be entered; and he insisted that the plaintiff could not maintain his action without proving the handwriting of the endorser, nor under this special endorsement, without showing himself the legitimate holder of the bill. He considered the notice as proved to be wholly insufficient. It does not appear that the plaintiff was ignorant of the place of the defendant’s residence, and no reason is shown, why the notice was not given to him personally through the usual channel of the post-office.
    
      Mellen, for the plaintiff,
    agreed, as a general rule, that the handwriting of the first endorser of a bill of exchange was to be proved ; but he suggested that the case of a bill drawn in a foreign country, as the bill in the present case was, might form an exception. The production of the bill itself is presumptive evidence that the holder came fairly by it, in case of a bill payable to bearer, and a fortiori where one claims as endorsee. The special manner of this endorsement can have no effect; for the plaintiff, as bona fide holder of the bill, may lawfully write over the name of the endorser an order to pay the contents to himself.
    The opinion of the Court was delivered by
   Pabsons, C. J.

Several objections are made to the verdict in this case: That the bill does not appear to have been endorsed by the payee, because the endorsement is not made in blank, and does not direct payment to any person; and because the en- [ * 388 ] dorser’s signature is not proved. * As the payee, if he made the endorsement, expressly promises to pay the holder twenty per cent, damages, besides the principal, if the bill should be dishonored, we are satisfied that the endorsement is evidence of a transfer of the bill, without naming the endorsee; and in this respect the endorsement may be considered as general, and a bona fide holder may fill it up, by inserting above the express stipulation a direction to pay the contents to his order, for value received.

But the second objection is fatal. No person can maintain an action as endorsee of a bill of exchange, against the drawer or acceptor, without proving ah assignment of the bill by the payee. The plaintiff’s title to recover is as assignee of the payee ; and it is necessary that he show the assignment by proving the signature of the assignor, who is the payee, either by evidence of his handwriting, or by other sufficient evidence.

As to notice of the protest of a foreign bill, a copy of the protest should be given or offered to the drawer, or due diligence used to furnish him with this notice, before he can be charged, if, when the bill was drawn, his connection with the drawee was such as gave him a right to draw. As notice is alleged in the declaration to have been actually given, the written notice, with a copy of the protest, if left at a former dwelling of the defendant, in which neither he nor his family then resided, is not evidence of the notice stated in the declaration, although the defendant’s wife might elsewhere receive it; for it is not stated that she was empowered by her husband to receive notice of the protest of bills drawn by him. But as the defendant had been absent for several years, and had left no known agent to receive notice, had the use of due diligence been averred in the declaration, instead of notice being in fact given, the case would have shown sufficient evidence of such diligence.

On the second point, as the signature of the payee was not admitted nor proved, and as there was no evidence that he had assigned the bill, the verdict must be set aside.

* Leave was afterwards given to the plaintiff to dis- [*389] continue. 
      
       [See True vs. Fuller, 21 Pick. 140. — Ed.]
     