#### RODNEY FRENCH vs. GEORGE W. BARNEY.

Where A., the payee of a bill of exchange, indorsed it to B., and B. to C., and 0. then indorsed it “ without recourse to him,” but not ing to whom he indorsed it, it then became an indorsement in blank, and the bill became payable to bearer; and notwithstanding D. and E. afterwards indorsed it in full or specially, yet when it came again to C. by delivery, he had a right to demand payment of the bill from any prior indorser.

C. being the holder of the bill, the law implies, until something be shewn to the contrary, that he gave value for it, or came fairly and legally by it.

This was an action on the case, tried at Spring Term, 1840, of Chowan Superior Court of Law, before Pearson, Judge. The jury rendered a verdict for the plaintiff, subject to the agreement of the parties that if, upon the law of the case, the Judge should be of opinion for the defendant, the verdict should be set aside and a nonsuit entered. Upon argument the Judge set aside the verdict and ordered a non-suit, from which judgment the plaintiff appealed. The following is the case sent up by the Judge;

This was an action on the case by the plaintiff as endorsee against the defendk'ffittas endorser of a bill of exchange. A copy of the bill and tlUPseveral indorsements is sent as a part of the case. After the bill was endorsed by the defendant, it came to the hands of the plaintiff as endorsee. He endorsed it “ without recourse.” It went through several other endorsements, and was duly protested by the last endorsee, and due notice given to the defendant. After this the bill came to the possession of the plaintiff, the testimony did not shew in what way, before this action was brought. Defendant insisted that as plaintiff had indorsed “ without recourse,” the bare possession of the bill does not entitle him to sue in his own name as endorsee. This question was reserved, and, under the charge of the Court, the jury returned a verdict for the plaintiff.

Upon the question reserved, the Court was of the opin*220that the plaintiff could not maintain the action. This could only pass by endorsement; where, however, an endorsee endorses over, and afterwards takes up the bill, in disc¡jarge of his liability, he is remitted to his former right, and may strike out the subsequent endorsements and sue as endorsee; and the fact of his having possession of the bill raises the presumption that he has taken it up in discharge of his previous liability. But in this case the endorsement being “ without recourse,” repels that presumption, for he was under no liability; and the possession of the bill simply raises a presumption that he is the owner by purchase or otherwise, and he stands in the condition of a stranger, who had purchased the bill without endorsement to himself. It was agreed by the parties that the subsequent endorsements should be considered as stricken out, provided the Court thought that the action could be maintained,

Bill and endorsements referred to.

Exch. $637 50. Edenfon, N. C. April‘¿0th, 1836.

Twelve months after date of this first of exchange (second unpaid of same tenor and date) pay to the order of Geo. W. Barney, Esq. six hundred and thirty-seven 50-100 dollars, for value received, and charge the samp to account of Your ob’t servts.

Haughton ffc Booth. •

•To Messrs. Haughtop, Boapdpran & Noble,

New York.

Accepted. Haughton, Boardman & Noble.

(Endorsed)

Pay T]ios. J. Charlton or order..

G. W. Barney.

Pay Rpdney French, Esq, or order.

Thos. J. Charlton.

Without recourse to me.

Rodney French.

Geo. Bowen.

Pay H. E. Hudson, Esq. Cash’r, or order.

Geo. S. Weaver, Cash’r.

Pay H. Baldwin, Esq. Cash’r, or order.

H. E. Hudson, Cash’r.

*221^ an endorseorinfvU, it must direct payment to somT'partiper’ corporati’n.

A. Moore for the plaintiff.

Kinney and Heath for the defendant.

Daniel, Judge.

This was an action by the second endorsee against the first endorser of a Bill of Exchange. The execution of the bill by the drawer, the acceptance, due demand and notice were all admitted to be complete. ■ The defendant, however, contended that as the plaintiff had once owned the bill as second endorsee, and had assigned it “ without recourse,” he could not again obtain a title to it, so as to give it in evidence on this declaration, and of this opinion was the Judge: because, he said, as the plaintiff had once made a restrictive endorsement, and by it had escaped from liability on the bill, he could not again obtain a title, so as to enable him to sue on it as endorsee. The Judge said, that when an endorsee endorses over, and afterwards takes up the bill in discharge of his liability, he is then remitted to his former right, and may strike out the subsequent endorsements and sue as endorsee, and the fact of his holding the bill raises the presumption of his having taken it up in discharge of his previous liability; but, in this case, the endorsement by the plaintiff being “without recourse” repelled such a presumption, and he had no title. The same arguments have been pressed upon us in this court by the defendant’s counsel. But the authorities cited, only shew that an endorser in full, who takes up the bill, is remitted to his former title, and may strike out his endorsement and sue as endorsee those standing before him on the bill. The law presumes that he has given value for it, therefore will permit him to strike out the names of persons, who apparently own and have the legal title to it. But the restrictive endorsement of French in this case was in blank; it directed payment to be made to no particular person, firm or corporation, which is necessary to , , . , ,, , make an endorsement special or in full. The next endorsement was also in blank. The bill, after it was so endorsed in blank, assumed the character, and had the effect thereafter a bill payable to bearer. Chitty on Bills 136. Byles on Bills 84. Peacock v. Hodges, Douglass 633. Francis v. Mott, Doug. 612. The two first and two last endorsements *222being special or in full, did not prevent the bill assuming character of a bill payable to bearer, after it had been once endorsed in blank, Smith v. Clarke, 1 Esp. Rep. 180. Holmes v. Hooper, Bay. Rep. 158— Chitty on Bills 136; for became payable to bearer as against the drawer, the acceptor, the payee, the blank endorser, and all endorsers before him. Byles on Bills 85. The bill passed as currency bu the market, and French had as much right to purchase it anyb°<iy else. He being the holder, the law implies, unsomething be shewn to the contrary, that he gave value for it, or rather came fairly and legally by it. Byles on Bills 60 — 3 Kent’s Com. 77. The plaintiff had therefore acquired a legal title to the bill by delivery. The restrictive endorsement by French did not break the chain of title. The idea of the Judge that French must have been once liable, as endorser on the bill, and that he must have taken it up in consequence of that liability, before he could gain a title to sue on it, we think is erroneous. He, being impliedly the bona fide holder, had a right to strike out all the endorsements below that to himself, and declare as the second endorsee. Smith v. Clarke, 1 Esp. Rep. 180.

endorsecHn Wank, beabrTtoS the accept- or er3,

Per Curiam. Judgment of non-suit set aside, and judgment rendered for the plaintiff on the verdict;