Page:Federal Reporter, 1st Series, Volume 5.djvu/413

 OUAHA NAT. BANK V. WALKHB. 401 �correctness can well be controverted. But, as I now view the law that applies to this case and must control the rights of the parties, it is wholly immaterial whether the instructions complained of were right or wrong. If the defendants were in a position to enable them to show a -want of consideration for the giving of the note, then the verdict of the jury is clearly right; for, as before stated, it was fuUy conceded on the trial that no consideration passed from Hazzard to the defendant» as an inducement to make the note. The note is made pay- able to John W. Hazzard, but it was, as a matter of fact, "transferred and the collection of the same guarantied" by George Hazzard, he signing the name of John and his own to the guaranty. But whether he had the rightful authority to use the name of the payee in this connection did not clearly appear ; nor do I think it necessary to examine this, question, notwithstanding much importance was attached to it in the argument. �Now, can such a "transfer and guaranty of collection" of a promissory note be regarded as an indorsement of com- mercial paper so as to bring the transaction within the prin- ciples regulated and controUed by the law merchant ? If not, then the defendants were in a position to insist on the defence which seems to have been available to them, not- withstanding the bank may have purchased the note without knowledge of such defence. �It is, perhaps, correct to say that the title to this note would have passed to the bank, so as to have enabled it to maintain a suit without any indorsement or written transfer thereof or thereon. But in such a case as that the purchaser , would take the note subject to any defence which might be made to a suit instituted in the name of the payee. The usual and ordinary rules and regulations goveming the sale and transfer of commercial paper must be observed in order to eut off defences available as against a payee. Negotiable promissory notes are usually made payable to a particular person, or bearer, or order, and the title thereto passes by sale and delivery, without any formai indorsement. Other apt words may possibly supply the places of the well-known �v.5,no.5— 26 ����