
    CASE 37 — PETITION ORDINARY
    JULY 17.
    Tevis vs. Young.
    APPEAL FROM SHELBY CIRCUIT COURT.
    1. An instrument having all of the forms of a bill of exchange, except the name of a drawer, is defective and incomplete, and no action can be maintained thereon by the holder against the indorser.
    2. Y., as the holder, sued T., as the indorser, of a bill of exchange in the following form:
    “$1,500. Shelbyville, August 31, 1853.
    “ Six months after date, pay to the order of John Tevis fifteen hundred dollars, value received, and charge yours,
    “ To W. G. Rogers, Shelbyville.”
    R. accepted, by indorsing his name across the face, and Tevis wrote his name on the back of the paper. Held — That the instrument was defective and incomplete, and no action could be maintained thereon by the holder against the indorser.
    The facts appear in the opinion of the court.
    
      Jambs PIarlan and T. B. Cochran for appellant—
    
    1. No action can be maintained on the instrument as a bill of exchange. To constitute a valid bill of exchange there must be a drawer. The acceptor must know, when he pays the money, to whose account he is to charge the amount. (1 Bou-vier's Institutes, 456, 460; Levi on Mercantile Law, 84 Law Library, 176; Bylcs on Bills of Exchange, 61 Law Library, 53, 250; 3 Kent, 8th edition, 92; Story on Bills of Exchange, 45; Stoessiger vs. South Eastern Railroad Company, decided by Queen's Bench, 1854, and reported in 25 Law and Equity Reports, 235; Vyse vs. Clark, 5 Carrington and Payne, 403.)
    2. The instrument is not a note. The definition of a note is a promise by one person to pay to another, or his order, a certain sum of money. In this case there is no promisor.
    3. But if it has the elements of a note, no action can be maintained on it in this state by the assignee or holder, against the indorser or assignor, without first prosecuting the maker to insolvency. The British statute of Anne has never been adopted by this state.
    Other authorities cited in argument: Smith's Mercantile Law, pp. 264, 266, 277, 280, 287, 300, and note y; 1 Bibb, 490, 504; 3 B. Mon., 636 ; 3 Kent, 74, 78, 86, 81, 82.
    B. Monroe, T. N. Lindsey, and J. M. and W. 0. Bullock for appellee—
    
    1. The instrument sued on is a valid bill of exchange. So far as Young is concerned it is not material by whom the request was made to pay the money, if the person to whom it is addressed, by acceptance, agrees to pay according to the terms of the request It was the peculiar business of the acceptor to know who made the request of him before he accepted; it is not for him to refuse to comply with his obliga-, tion according to his acceptance. It was his duty to himself, and to all others to whom the bill might be offered, to know who was drawer before he agreed to pay according to request, and it is not with him to say that there was no drawer of the bill or request. Having accepted, he is bound to pay, and no name appearing at the foot of the bill, he must himself be regarded and dealt with as both drawer and acceptor.
    2. Tevis, by indorsing the bill, requested its payment to Young, who, relying upon the sufficiency of Tevis as indorser, and Rogers as acceptor,- took the bill, which was then in effect á new bill by Tevis on Rogers, according to all the authorities.
    3. Each indorser is to be regarded as the drawer of a new bill, and as undertaking to pay according to the terms of the bill indorsed. Is not this, then, a valid bill as drawn by Tevis and accepted by Rogers? Tevis, knowing all that he now knows, or all that now appears on the bill, gave it currency as an accepted bill, and is legally responsible to the holder, Young.
    4. No particular form of words is necessary to constitute a paper a bill of exchange; but if it appear doubtful whether a particular instrument was intended as a note or bill of exchange, it may be treated as either.
    Authorities cited in argument: Ross on Commercial Law, 82 Law Library, side page, 273, 279, 377; 3 Burrow, 1354; 1 Blackstone’s Rep., 390; lb., 381; 3 Kent, 78, (6th edition;) Smith’s Mercantile Law, 251, 261, 271; Rice vs. Hogan, 8 Dana, 134; 6 Cranch, 222; Chitty on Bills, pp. 27, 109, 112, 218; 8 B. Mon., 169; 2/. J. Mar., 461; 2 Lord Raymond, 1396; 8 Mod., 364; 4 Mass. Rep., 258; 3 Wheat., 520; 1 Yeatcs, 360; 2 McCord, 388; 5 Taunt., 192; lb., 529; 1 Marsh S. C., 14; 6 Price, 111; Byles on Bills, 56, top page, vol. 61, Law Library; 1 Strange, 609 ; Edwards on Bills, 133, 129, 147, 150, 185; Riley’s Law Cases, 248; 6 Wend., 443; 1 Denio, 471; 6 Hill, 443; 4 N. Ilamp. Rep., 239, 247; Rev. Stat., 194 ; 9 Porter, 76; 1 Story, 22; 3 East., 482; 2 Burr., 674; 1 Strange, 441; 12 Wend., 439.
   JUDGE DUVALL

delivered the opinion op the court. (Judge SIMPSON dissenting.)

Young brought this action against Tevis as the indorser, and Rogers as the acceptor, of a bill of exchange. The following is the instrument sued on:

“$1,500. Shelbyville, August 31, 1853.

“Six months after date, pay to the order of John Tevis fifteen hundred dollars, value received, and charge yours,

“ To W. G. Rogers, Shelbyville.”

The acceptance of Rogers appears in the usual form, written across the face of the paper, and on the back is indorsed the-name of “John Tevis” in blank.

Rogers made no defense to the action.

Tevis demurred to the petition, relying mainly upon the ground that the paper sued on was not a bill of exchange, but was incomplete, not having been signed by any person as drawer.

Pie also filed an answer, in the first paragraph of which he alleges, in substance, that Rogers requested him to sign three papers in blank, to be filled up with amounts and dates, and signed by drawers, and accepted as regular bills of exchange, to be used by Rogers; that he did accordingly sign the three papers, and hand them to Rogers, with that understanding, to be used by the latter when he should have caused the same to be drawn by a responsible drawer, and accepted in due form; but that the paper sued on, being one of the three mentioned, had never been drawn, and is not therefore binding on him.

The court below sustained a demurrer to this paragraph of the answer, overruled the demurrer of Tevis to the petition, and rendered judgment against him for the $ 1,500. To reverse that judgment he has prosecuted this appeal.

The most important question presented by the record, and the only one we shall notice, is that which arises upon the demurrer to the petition, and which involves the single inquiry, whether the instrument on which the action is founded is, as to the appellant, a complete or valid bill of exchange? For it is to be-observed that the petition contains no averment of any extraneous fact. The appellant is sought to be charged only as the indorser of a bill of exchange.

The utility of that class of contracts usually denominated negotiable paper, and the policy of sustaining its circulation and credit, have long been recognized by the courts of all commercial countries. It is allowed many and peculiar privileges; and so great is the protection which the law'' extends to the innocent holder of such paper, that there are said to be but few cases in which any defense will be held available as against him in favor of the antecedent parties.

A bill of exchange is a written order or request, by one person to another, for the payment of money, at a specified time, absolutely and at all events. (3 Kent, 87.)

It is the well settled doctrine, however, that the language of no particular formulary is essential to the validity of a bill. “On the contrary,” says Judge Story, “the form and language may be greatly varied, and often is varied in the practice of different nations. It will be sufficient in our law that the contract be in writing, and have all the other substantial requisites to constitute a bill, however inaccurately or inartificially it may in other respects be expressed; or, in other words, it will be sufficient if it be in writing, and contain an order or direction by one person to another person, absolutely to pay money to a third person, and cannot be complied with or performed without the payment of money.” (Story on Bills, 46.)

And among the substantial requisites elsewhere enumerated by the same author, and which, he says, constitute the very essence of bills of exchange as commercial securities, are the names and description of the parlies to the instrument, whether as drawer, or payee, or drawee. For “ it is obvious that every bill must contain upon its face the name of the party by whom it is drawn.” “The name of the drawer is usually written or subscribed at the bottom of the bill, but this does not seem to be absolutely indispensable, for if the bill is written by him, and his name is inserted in the body of the bill, or is otherwise signed to it, so that it clearly appears that he is the drawer, it will be sufficient.” (lb., 71; Bayley on Bills, 37, 38; Chitty on Bills, 185; 3 Kent, 78.)

It is clear, therefore, that whatever may have been the liberality of the courts, or the indulgence of the law, in dispensing with mere matters of form in the execution or construction of bills of exchange, they constitute no exception to the fundamental rule which requires, as essential to the validity of every contract, that there be proper parties to it. In the language of Parsons, “we cannot conceive of a contract which has no parties.” And it would certainly be no less impossible to conceive of a promissory note which had no maker, or of a bill of exchange which had no drawer.

The proposition that there can be no such thing as a bill of exchange without a drawer, is in effect conceded by the counsel for the appellee. But it is insisted that the defect in this particular, as it is exhibited upon the face of the instrument before us, is cured or obviated:

First, by regarding Rogers as the drawer. The argument is, that “Rogers, having accepted, is bound to pay; and no name appearing at the foot of the bill, he must himself be regarded and dealt with as both drawer and acceptor.” This, however, is a mere assumption, unsupported by any fact or rational iin-ference. The fact that he actually wrote his name across the face of the paper as the acceptor, is certainly sufficient to repel any presumption that he intended to occupy any other position upon the bill when completed.

Secondly, it is insisted that Tevis must be considered as the drawer. The indorsement of a bill, it is argued, is not merely the transfer of the paper, but that it is equivalent to a new bill, drawn by the indorser upon the acceptor, in favor of the indorsee, and that, therefore, Tevis, by indorsing this bill, became the drawer of a new bill, of which Young was the payee.

The first and most obvious objection to this argument is, that it assumes the existence of the very fact it is intended to prove. It assumes that the paper indorsed by Tevis was a bill of exchange, which, of course, implies a pre-existing drawer. It also assumes that Rogers was the acceptor of a bill at the time the indorsement was made. But is it not an abuse of terms to say that he was the acceptor of a bill that had never been drawn; or, in other words, that he had accepted an “ order,” or “request,” that had never been made upon him? According to Chitty, “ acceptance is defined to be the act by which the drawee evinces his consent to comply with, and be bound by, the request contained in a bill of exchange directed to him. The very term acceptance seems to suppose a pre-existing bill.” (Chitty on Bills, 184.) And is it less philosophical to say that the term “ acceptor ” necessarily supposes a pre-existing drawer?

The fallacy of all the reasoning of counsel upon this point, consists in their failure to recognize the distinction between a bill of exchange and the mere form of such an instrument. The words written upon the face of the paper in question are utterly inoperative, and without force or legal effect for any purpose as a commercial instrument, without the name of a drawer, either subscribed to the paper, or inserted in the body of it. Whether the name of the drawer, or of any subsequent party to the bill, be forged or fictitious, makes no difference as it respects the liability of the indorser. The indorsement implies an undertaking that the antecedent parties are competent to draw and accept the bill, and that their signatures are genuine. But the indorsement does not imply an undertaking that the paper indorsed contains the names of all the antecedent parties necessary to constitute a valid bill of exchange, when the face of the paper itself shows that it is blank as to all or any of such names. The indorsement of the paper would, doubtless, confer upon the party intrusted with it, authority to fill up the blanks with the names of any parties, at the discretion of the latter; and so, the indorsement of a piece of blank paper would give the holder authority to make a bill of exchange, upon which the indorser would be liable, in the hands of an innocent holder for value, for whatever amount, or in the names of whatever parties, the bill might be subsequently drawn and accepted. But certainly it cannot be supposed that in either of the cases stated, the indorser could be held liable, as such, until the paper should have been drawn and executed and completed as a bill of exchange. It is not the mere authority to make a bill, which of itself creates the liability, but it is the execution of that authority.

We are referred to the case of Heylyn vs. Adamson (2 Burr., 669) as conclusive of the point under consideration. But in that case it will be seen that Lord Mansfield merely lays down the doctrine which has ever since been recognized by elementary writers, as well as by the adjudications of the courts upon this subject, “that where a bill of exchange is indorsed by the person to whom it was made payable, as between the indorser and indorsee, it is a new bill of exchange, and the indorser stands in the place of the drawer; the indorser undertakes to demand the money of the drawee; that the indorsee does not trust to the credit of the original drawer; he does not know whether such a person exists, or where he lives, or whether his name ma,y have been forged. The indorser is his drawer, and the person to whom he originally trusted, in case the drawer should not pay the money.”

This is undoubtedly sound law, but we do not perceive the applicability of the principle to this case. The very question here is, whether Tevis is the indorser of a bill of exchange, and he certainly cannot be so regarded until it be first shown that the paper he indorsed was a bill. If it was, then, in the language quoted, he became, in legal contemplation, the drawer of a “new bill” as between himself and his indorsee, or, in other words, he occupies, as to the latter, the position of drawer. But if the paper indorsed was not a bill of exchange, or was not an inforcible contract of any kind, would it be contended that the indorsement would be, nevertheless, a new drawing, or the drawing of a new bill, upon which the indorsee who might part with his money on the faith of its validity, could hold the indorser liable? To have the effect of a new drawing, in the sense in which this and similar expressions are used in the authorities cited, the indorsement must be upon a bill, and not upon a mere incomplete form of such instrument, nor upon a blank piece of paper which is never filled up. Indeed, it is conceded in argument, and must in the very nature of the case be true, that the new undertaking of the indorser, resulting from the mere act of a blank indorsement, derives its character and its legal effect and efficacy from the bill or contract indorsed.

It is furthermore true, as argued, that “ a man may draw on himself, payable to his own order, but in such case the instrument is more in the nature of a note than a bill of exchange.” (Bayley on Bills, 26.) So it has been decided by the English courts, that under the statute of Anne, a promissory note made payable to the maker or his order, and by him indorsed, is a valid security, although said to be in an absurd form. The principle on which those decisions rest is said to be this: that the note, before it was indorsed, was in the nature of a promise to pay to the person to whom the maker should afterwards, by indorsement, order the amount to be paid. But suppose the instrument first mentioned had not been signed by the party as drawer, or that the note in the case referred to had not been signed by the maker, could the validity of either the one or the other have been maintained upon any principle ? We do not see, therefore, how those cases can be regarded as affording any support to the argument in favor of the validity of the paper we are considering.

In the multitude of adjudged cases upon the subject of bills of exchange and promissory notes, we have met with no case in which a question similar to the one before us has arisen in an action to enforce the supposed liability of the parties to an instrument like this. There are cases, however, in which it has been expressly decided that instruments of this description cannot be treated as valid negotiable or commercial contracts.

In the case of Vyse vs. Clark, (5 Carr. & Payne, 403,) it was field, that a paper on which- the form of a bill was written, except the name of a drawer, and on which the defendant wrote his name as acceptor, and delivered it to the plaintiff, was not a bill of exchange, upon the ground thnt “ there must be a drawer to a bill.”

And in the more recent case of Stoessiger vs. S. E. Railway Co., (25 English Law and Eq. Rep., 235,) it appears that a parcel was delivered to the railway company for carriage, containing 9£ 10s. in cash, and an instrument bearing a bill of exchange stamp, in the following form : “ Three months after date, pay to me the sum of 11 £ 10s., value received.

“ To Mr. Cruttenden, &c.”

and written across it was an acceptance by Cruttenden; and the intention was that Gould should put his name to the instrument as drawer. In the course of transmission, the parcel was opened, and the instrument and the money it contained were abstracted. The action was against the company for the loss. It was held that the instrument was not a bill of exchange, because there was neither drawer nor payee; that it was an imperfect instrument, and gave power to a particular individual to make it a perfect instrument by putting his name to it as drawer.

After a patient and careful examination of all the authorities within our reach, bearing-upon this question, a majority of the court (Judg'e Simpson dissenting) have • come to the conclusion that the paper upon which the appellant is sought to be charged in this action as indorser is not a bill of exchange.

Whether such a state of fact might not exist as, if properly alleged, might be sufficient to render the appellant liable, is a question not presented by the record, and not necessary to be decided.

We are satisfied that neither sound policy nor the interests of trade and commerce require that the liberality of construction which the courts have always been disposed to apply to this class of contracts should be so extended as to afford protection to the holder of a paper so obviously and palpably defective and incomplete as this.

The judgment is therefore reversed, and the cause remanded with directions to sustain the demurrer to the petition.

JUDGE SIMPSON,

dissenting from tlie decision of the majority of the court, delivered the following opinion:

Inasmuch as the writing upon which this action is founded, although in the form of a bill of exchange, has not on its face the name of a drawer, it is contended that it is invalid as a mercantile paper, notwithstanding it has, as parties to it, an acceptor, payee, and indorser, because, as it is argued, a drawer is an essential party to a bill of exchange, and therefore this instrument cannot be treated as one, nor regarded as obligatory on the other parties to it.

It is believed that this objection, when fairly scrutinized and tested by well established principles of the law merchant, will be found to be wholly untenable, and entirely formal and unsubstantial in its character.

In theory, three persons are necessary to a bill of exchange : a drawer, a drawee, and a payee or holder; but in practice, the same person may be drawer and payee, or may even be drawer, acceptor and payee, and will be liable as such upon his indorsing the bill.

This doctrine results from the general principles of the law merchant, which have been adopted for the purpose of encouraging trade and facilitating commercial transactions. It is also entirely consistent with the legal maxim, that two persons only are absolutely necessary to a valid contract, namely : the person binding himself to perform some act, and the person in whose favor that act is to be performed.

It has also been decided that an indorser is responsible, although the original drawer be a fictitious person. (Leach vs. Hewitt, 4 Taunt., 731.) And a bill drawn by a married woman, although void as to her, may be of full force and obligatory as between the other parties to it. {Story on Bills, 97.)

Now, would it not be a legal anomaly to hold, that a bill in the name of a fictitious drawer, or one, the drawer of which was incapable in law to make a contract, and therefore not obligatory on her, should be valid and obligatory on the indorser, and yet that the indorser would not be bound, merely because the name of a drawer was entirely omitted, and did not appear on the face of the bill ? Any name as drawer, however fictitious or imaginary, is sufficient to render the bill valid; but the absence of the name of a drawer altogether is a fatal defect, and wholly destroys the validity of the instrument. Truly this is a rigid adherence to mere form, without any regard whatever to substance. If such be the law, much as we may flatter ourselves that we have advanced in emancipating the science from the trammels of mere form in general, yet it will appear that in the application of the law merchant, which is usually expounded with great liberality, we adhere strictly to form, so far, at least, as the structure of the instrument is concerned. Unless it be in the exact form of a bill of exchange, it can have no validity under the law merchant.

The only parties to a bill of exchange between whom a direct undertaking exists, are the acceptor and the payee. The former, by his acceptance, agrees to pay to the latter the amount of the bill according to its tenor and effect. Here such an undertaking existed; the acceptor agreed to pay the sum named in the instrument to the payee, and the latter, by his indorsement, transferred the benefit of this promise to the holder. What more was necessary to create a liability upon the parties? There is a direct promise to pay the money, and a transfer of that promise. The instrument is drawn in the form of a bill of exchange, and is made negotiable on its face. It is not only made negotiable by its terms, but was in fact indorsed and negotiated by the payee. He contends, however, that he is not liable upon his indorsement, because the name of a drawer is not subscribed to the instrument, although in all other respects it is a complete and perfect bill of exchange.

Let us examine this objection, looking alone to the nature of the instrument. A bill of exchange is, both in theory and in practice, a written request by one person to another to pay to a third a sum therein speciñed, at a designated period. Now, suppose the person making the request should fail to subscribe his name to the writing, and the person to whom the request is directed, knowing the hand-writing, or having information which satisfies him that such a request has been actually made, undertakes by his acceptance to comply with it, and the payee, after the instrument has been thus accepted, indorses it for value, would not such a transaction be entirely consistent Avith the nature of a bill of exchange, as well as the purpose for which it is created ? The drawee may, for his own security, refuse to accept, unless the name of the drawer is subscribed to the bill. But if he waives this privilege, and accepts the bill, what right has he to say he is not responsible on his acceptance, because the name of the drawer was not signed to the instrument ? And if, under such circumstances, the payee should receive and indorse the bill, what right would he have to say to his indorsee, I am not responsible on my indorsement, because the di'.awer of the bill did not sign his name to it? He might have refused to receive it from the drawer unless his name was subscribed to it; but having received it, procured its acceptance, and negotiated it by his indorsement, he has treated it as mercantile paper, and if in so doing he acted indiscreetly or improvidently, he will not be permitted to rely upon such indiscretion, and thereby take advantage of his own wrong, to the prejudice of third persons. But I contend there would be nothing wrong in such a transaction, and that the whole proceeding would be in strict accordance with the true nature and design of such instruments.

Or suppose that the payee himself is the drawer of a bill, and fails to sign his name to it, but procures the drawee to accept it, and then negotiates and indorses it, would it be contended by any one that, under such circumstances, he would not be responsible to his indorsee ? If, therefore, in the cases mentioned, the indorser would be liable on his indorsement, of which it seems to me there cannot be any doubt, it follows that the name of a drawer to a bill is not an indispensable requisite to the validity of the instrument.

If, however, a drawer be essential to the validity of a bill, this requisite exists in the present case. The instrument was indorsed by the appellant, and the doctrine is well settled that the act of indorsing a bill is equivalent in its effect to the drawing of a bill, the indorser being considered as a drawer on the original drawee. (Chilty on Bills, 142.) It is in fact the same as a new bill drawn by the indorser on the acceptor in favor of the indorsee. (Van Staphorst vs. Pearce, 4 Mass. Rep., 258.) By the indorsement the acceptor is requested to pay the amount of the bill to the indorsee. This request is made by the in-dorser, who thus becomes both in form and effect a drawer in favor of the indorsee. The indorsement of a bill, therefore, is not merely a transfer, of the paper, but is a new and substantive contract between the parties. (Slacum vs. Pomery, 6 Cranch, 222.)

It is contended, however, that an indorser is only a new or an additional drawer, and that he cannot become such, where there is no original drawer, as in the present case. I am unable to perceive the force of this reasoning, or-why the effect of an indorsement should depend upon the existence or non-existence of an original drawer; but in addition to this, the position assumed is in direct conflict with the doctrine regulating the liability of an indorser. His liability is that of a drawer, and is entirely independent of that of the original drawer on the bill. The holder may sue him before the bill becomes due, if the drawee refuse to accept, his liability to the indorsee being exactly similar to that which a drawer of a bill is under to thé payee. (Ballingalls vs. Gloster, 3 East, 483.) And the indorsee can sue the indorser without any reference whatever to the original drawer’s breach of contract, (Heylyn vs. Adamson, 2 Burr., 669, 675,) which clearly proves that his undertaking is entirely independent'of that of the original drawer.

But the distinct and independent nature of the contract between the indorser and indorsee is still more fully exemplified by the principle which determines, that as between them, it makes no difference whether the bill be originally negotiable or not. (Story on Bills, sec. 108.) Although a bill as originally drawn should not be negotiable, yet it may become a negotiable instrument as between the indorser and indorsee, in consequence of the indorsement operating as the drawing of a new bill, and thereby imparting to the instrument a negotiable quality which it did not previously possess. Could anything more forcibly and conclusively establish the correctness of the proposition that an indorsement is equivalent to the drawing of a new bill, and that the liability it imposes on the indorser does not depend upon that of the original drawer, or even upon the fact whether or not there be any original drawer on the bill?

But it is said that this instrument could not be regarded as a bill of exchange before it was indorsed, and that there is nothing to show that the indorser intended by his indorsement to make it negotiable. It is in form a bill of exchange, drawn on W. G. Rogers, accepted by him, and made payable to the order of John Tevis, by whom it was indorsed to the plaintiff. It is in every respect a complete and formal bill of exchange, except that it does not contain on its face the name of a drawer. Now, it might well be asked, what did Tevis intend to effect by his indorsement of the paper, if it were not to make it negotiable ? He certainly intended by it to make himself liable for the amount in some manner or other. It is said by Chitty in his treatise on bills, (page 109,) that any words in an instrument, from which it can be inferred that the person making it, or any other party to it, intended it to be negotiable, will give it that quality against that person. Here the instrument was in words and in form negotiable, and was actually negotiated by the very person'who now contends that it is not a negotiable paper; for it must be recollected that the controversy in this case is with the indorser, who has appealed from the judgment against him in the circuit court. If he be not liable upon the instrument, as an indorser of negotiable paper, I should like to know in what his liability consists. The writing is not, either. in form or substance, a promissory note, so as to hold him responsible as assignor. If it be obligatory upon him at all, it can only be by reason of his indorsement upon it as a negotiable instrument. That the parties to it understood it to be and treated it as a bill of exchange, does not admit of a rational doubt. If, then, the nature and character of the contract is to be ascertained from the intention of the parties, the point in issue is at once settled. The writing is in the precise form of a negotiable instrument; it is not pretended that the parties designed it to have an efFect different from its purport; and the inevitable conclusion, therefore, is, that they intended it to be what it purports to be, namely, a bill of exchange.

Now, when the obvious intention of the parties can be carried into efFect, as in this case, consistently with the well established principles of the law, I am entirely unwilling to permit it to be defeated upon a mere formal and technical objection to the writing, which was indorsed and negotiated by the appellant himself, especially when it will result in manifest injustice, and irreparable injury to the innocent holder of the paper. Can it be that Tevis, who indorsed this paper, and thereby put it in circulation, shall be permitted to say in a court of justice that he is not responsible as indorser, because the paper, not having all the formal parts of a bill of exchange, is not negotiable? Rogers, by his acceptance, agreed to pay the amount named in the instrument to Tevis, the payee, and he by his indorsement requested him to pay it to the holder; and yet he is allowed, after he has made the paper negotiable and put it into circulation by the act of indorsing it, to defeat his own liability as indorser, on the ground that it has not all the formal parts of a bill of exchange. No such defense can be relied upon by an indorser; he guaranties the validity of the instrument, in every respect, by the act of indorsing it, and is estopped to deny its validity; this is a well established principle of the law merchant.

But it is said, the authorities decide that a drawer is indispensable to a bill, and that an instrument cannot be a bill unless the name of a drawer is on its face, and two cases are referred to in support of this position. Let us examine those cases and ascertain what was decided by them. The case of Vyse vs. Clarke, (5 Carrington and Payne, 403,) was an action of assump-sit for goods sold and delivered. The defendant pleaded that the plaintiff had drawn a bill on him for the amount due him, which he, the defendant, had accepted. The plaintiff replied that no such bill was drawn and accepted, as the defendant in his plea alleged. This was the issue between the parties. It was proved on the trial that the defendant had written his name as acceptor on a blank bill of exchange, and had handed the paper to the plaintiff’s agent, who proved that he had no authority to sign bills or to put the name of his principal as drawer, and had not done so. It also appeared that the bill had been sent by the agent 'to the plaintiff who did not sign it as drawer, or accept it in payment of his debt, but brought the action against the defendant on the account.

The issue between the parties was whether a bill had been drawn by the plaintiff and accepted by the defendant. The proof showed clearly that it had not been signed by the plaintiff as drawer. The court decided that the defendant had failed to make out the issue. There was in fact nothing else to decide. Baron Vaughan, however, remarked that if the agent had no authority to sign the bill, and it was not adopted by the plaintiff, it was not a bill drawn by him. He then made use of the remark relied upon, that “ there must be a drawer to a bill;” but he also remarked, “I do not say that a person may not so deal with such an instrument as to make it a bill.” Now what kind of an instrument was he speaking of that might be so dealt with as to make it a bill? It was evidently one similar to that which was then before the court. What did he mean by saying that it might be so dealt with as to make it a bill? He could not have intended merely to say that the plaintiff, b)r signing it as drawer, would by so doing have so dealt with it as to make it a bill, for that was conceded on all hands; and it would not, if signed by the plaintiff as drawer, have then been sucb an instrument as he was speaking of. He manifestly meant by what he said about the instrument under consideration, that it might be so dealt with in its then imperfect form and condition as to make it a bill. So far, therefore, as these remarks can be relied upon as authority, they establish a conclusion directly opposite to that which has been attempted to be deduced from them.

The case, however, really proves nothing, except that under the issue made by the parties it was necessary to show that the instrument had been signed by the plaintiff, and, therefore, in that particular case, a drawer was necessary.

The acceptor was in fact the only party to the instrument. His acceptance, therefore, did not create any obligation upon him. He had not entered into a contract with any person, and therefore the writing could not have any legal effect whatever. But suppose the plaintiff had agreed to take the defendant’s acceptance in payment of the debt, and being the payee, had indorsed and sold.the bill without signing it as drawer, would he not then, in the language of the judge, have so dealt with the instrument as to make it a bill? Would he be permitted, after having negotiated the instrument, to say : true, I indorsed the paper, and might have made it a valid bill by signing my name as drawer before it was negotiated, but not having done so, my indorsement does not render me liable? Such a defense shocks the moral sense of every man, and should not be sustained unless it be imperiously demanded by some rigid and inflexible rule of law.

The other case referred to, of Stoessiger vs. The South Eastern Railway Company, (25 vol. English Law and Equity Rep., p. 235,) tends less, if possible, to sustain the position contended for, than the case already examined. A writing which purported to be addressed to Mr. Cruttenden, and which requested him to pay to the writer, whose name was not signed to it, a certain sum therein named, three months after date, had an acceptance written across it, which was subscribed by Crutten-den. No other name appeared upon the paper, nor was it made payable to an}' person. This writing had been stolen from the defendants, who, as carriers, had undertaken to convey it from one place to another, and the action was brought against them to recover its value. The only question before the court was whether or not the paper was of any value when it was delivered to the defendants. The judges decided that it was neither a bill, nor a promissory note, nor a security for money, and therefore it was of no intrinsic value beyond the value of the paper. The name of the acceptor was the only name upon the paper; there was no payee, drawer, or indorser, and it is impossible to perceive on what ground it could have been regarded as a contract between him and any other person. It is manifest, therefore, that the point there decided has no analogy whatever to the question in this case. But an intimation was given by one of the judges, in delivering his opinion, on the very question involved in this case. Erie, justice, after deciding that the writing was of no value, said he would limit his opinion to that point, “ because an acceptance, wanting only the name of the drawer, might, under certain circumstances, be of value.” He did not state what circumstances he referred to; but certainly, if the instrument would be valid under any circumstances when the name of the drawer was wanting, it should be so regarded in this case.

It seems to me, therefore, that these cases, instead of supporting the doctrine contended for, do, so far as they have any bearing at all upon the questions at issue, conduce to establish the opposite principle, and are not at all in conflict with the other cases which decide that an indorsement is, in legal effect, the drawing of a new and independent bill.

As we have looked to the decisions of other courts, let us now see what this court has decided that has a bearing on the subject. In the case of Piner vs. Clary, (17 B. Mon., 660,) it was decided, that Clary having indorsed a certificate of deposit made payable to his order, and subscribed bjr P. B. Manchester, had thereby rendered the paper negotiable, upon the express ground that the indorser should be considered as the drawer of a check or bill on Manchester, for the amount named in the certificate. There the certificate of deposit was treated as an acceptance, payable to the order of Clary, and he having indorsed the instrument, it became, in the opinion of the co urt a valid bill. The same effect was given to an indorsed certificate of deposit in the case of Miller vs. Austin, &c., (13 Howard's Rep. Sup. Court, 228.) Now, these cases seem to me to have much more application to the question under consideration than the two cases referred to on the other side.

It has been suggested, that although the instrument is not valid as a bill of exchange, yet that Tevis might be held responsible on it as such, upon an allegation that he indorsed it, and put it into circulation as a negotiable instrument. I suppose the instrument must derive its legal effect from its own form and contents, and not from extrinsic circumstances. If it be a bill of exchange, the indorser could not impart to it any other character, even by an express' declaration of his intention that it should not be so regarded. And if it be not a bill of exchange, he could not make it such by a declaration that he intended it to have that effect. It may be that it was drawn by the indorser himself; if so, an allegation of that fact would no doubt preclude him from relying upon his own failure to subscribe his own name as drawer.

It seems to me, therefore, upon every view of this case that I have been able to take, that the instrument being payable to the order of Tevis, and indorsed by him, his indorsement was, both in form and legal effect, an order in favor of the holder, on Rogers as acceptor, for the amount named in the bill; and whether the instrument be in legal contemplation a bill of exchange or not, that he is responsible on it as a mercantile instrument. His indorsement was certainly a request to the acceptor to pay the amount named in the instrument to the holder thereof. As the drawer of an order to that effect, he was liable, if the order was not paid, whether the instrument was a bill of exchange or not. I have not heard any reason given why he should not be held liable on his order, nor has it been contended that his indorsement did not amount to an order on the acceptor. Indeed, this is so evidently the effect of an indorsement, that I suppose it wall not be controverted. My conclusion, then, is, that the instrument is a good bill of exchange; but whether it be or not, that Tevis is liable upon it as the drawer of an order upon the acceptor, in favor of the plaintiff, for the amount named in the instrument. Orders are invariably regarded by this court as mercantile paper, and treated as domestic bills of exchange. I therefore deem the decision of the circuit judge to be correct, and am of the opinion that the judgment ought to be affirmed.  