#### HENRY B. ELLIOTT v. NOAH SMITHERMAN et al. Adm’rs of SAMUEL SMITHERMAN.

A memorandum reciting the assignment of a promissory note, and engaging to pay, on demand, a stipulated price therefor, is a negotiable security ; and proof that the note, in consideration of which it was made, was a forgery, cannot he admitted against an assignee for value, who received' it before its dishonour.

An endorsement of a note to a bona fide endorsee, made by the payee in a fictitious name, in which it was made to him, is valid, although the name was assumed1 for a fraudulent purpose.

Asstjmpsit brought by the plaintiff as assignee, upon the following instrument, to wit:

“ This 27th April, 1835. Then received of William. Long one note on Cornelius Shields and William Carr, for three hundred and fifty dollars, which I promise to give him two hundred and sixty four dollars twenty-five cents? and I have paid him sixty-four dollars twenty-five cents; and the two hundred I promise to pay him, the said Long, whenever he calls on me for it. — Samuel Smithekman.”

Which was. endorsed as follows: “ April 30th 1835. I asssign the within note to Henry B. Elliott, value rec’d.

W*. Long.”

The defendants pleaded the “ general issue,” and spe-. cially that there had been no assignment of the note.. Upon the trial, at Randolph, on the last Circuit, before, his Honor Judge Dick, the plaintiff having proved the' execution of the instrument, the endorsement to him by the payee, and a demand after the endorse-ment but before suit, the defendant objected, that the note was not negotiable ; and moved that the plaintiff be nonsuited; which was refused. The defendants then offered to prove, that the note set forth as the note of Cornelius Shields and William Carr, was a forgery, and that, therefore, there was no consideration to the maker of the note declared on; but the Court rejected the evidence. The defendants further offered to prove, that the person who signed the endorsement, and to whom the note was made payable- by *339the name of William Long, was not in fact named William Long, but had assumed that name with a fraudulent intent to defraud the intestate, or the plaintiff, or some other person, and that, therefore, the endorsement was a forgery: but the Court rejected this evidence also, and charged the jury, that the instrument declared on, was a negotiable note; and that if they believed it was executed by the defendants’ intestate to a man calling himself William Long, and the same man endorsed it by the same name to the plaintiff, the latter had a right to recover; and this, although the endorser was not in fact named William Long, but had fraudulently assumed that name for the purpose of defrauding the maker, or the assignee, or any other person. Under these instructions a verdict was rendered for the plaintiff; and the defendant appealed.

Badger, for the defendant.

Winston, contra.

Daniel, Judge.

The first objection taken by the defendant to the charge of the Judge, is, that the instrument offered in evidence by the plaintiff, was not a negotiable note. We think that the instrument (though inartificially drawn) is a note for the payment of money absolutely and at all events, and therefore is negotiable. Chitty on Bills, 336. The case of Chadwick v. Allen, 1 Stra. 706, cited for the plaintiff, is very much like this case. Secondly, the defendant contends, that he should have been permitted to prove that the note was given by his intestate without any consideration, or that the consideration had failed. The note was executed on the 27th of April 1835, and concludes thus: “ I promise to pay him, the said Long, whenever he calls on me for it;” and it was endorsed to the plaintiff on the 30th of April 1835, who bona fide paid a valuable consideration for said endorsement before any demand had ever been made. There is no precise time in which a note payable on demand, is to be deemed dishonoured; but it must depend on the circumstances of the case. Loose v. Duncan, 7 Johns. Rep. 70. Loomis v. Pulver, 9 Johns. 224. Chitty on Bills, 129, 262-3, (note 6th edition.) When a check, or bill, or banker’s *340note, is expressed to be payable on demand, or when no time of payment is expressed, it is payable instantly on presentment, without any allowance of days of grace; and the presentment for payment of such a check or bill, must be made within a reasonable time after the receipt of it. Chitty on Bills, 269, and note 345. Freeman v. Haskins, 2 Caine’s Rep. 369. This note having been endorsed in so short a time as three days after its date, and before any demand of payment made, so far as can be collected from the evidence, it stands on the footing, we think, of a note endorsed before it is due; and that as the defendant’s intestate had put it in the market, he is precluded from showing a want of consideration to himself, so as to defeat the recovery of the plaintiff, who is a bona fide holder. Chitty on Bills, 127, and the cases there cited.

The last ground taken by the defendant is, that he was prevented by the Court from showing, that the payee and endorser was not in fact named William Long, but had some other name; and therefore, (as he contends,) the endorsement was a forgery, intended to defraud the maker, the plaintiff, or some other person. The answer is, that the maker of a negotiable note puts it in circulation, and when it is endorsed by the payee, he stands in the same situation as the acceptor of a bill of exchange; and it is no defence for an acceptor to an action by a bona fide holder, that the drawer’s name has been forged. Chitty on Bills, 185, and the cases there cited. This note was made to a person, who represented himself as named Will. Long, and that identical person endorsed it to the plaintiff for value, in the name of Will. Long. It therefore passed the title; and the plaintiff is entitled to recover of the maker’s administrator. The judgment must be affirmed.

Per Curiam. Judgment affirmed.