13. Indorsement waiving Wil son may indorse as follows, "Pay to Arthur. Hardy, waiving protest, John Wilson!! He may waive no tice of dishonor or waive presentment. Thus, the in dorser may relieve the holder from his duties as such to present the note for payment, or to give notice of dishonor, and so on.
14. Irregular and other indorsentents.—The Cana dian Bankers' Association has laid down that a regu lar indorsement must be neither restrictive nor con ditional, and must be so placed and worded as to show clearly that an indorsement is intended; and that an indorsement, other than a restrictive indorsement, which is not in accordance with this definition of a regular indorsement, or which is so placed or worded as to raise doubts as to whether it is intended as an indorsement, is an irregular indorsement.
We have already seen that where the name of a payee or indorsee is wrongly spelled, lie may indorse by writing the name as misspelled and placing under it his correct name, or by simply indorsing his cor rect name. When a person signs a bill otherwise than as a drawer or acceptor, he thereby incurs the liabilities of a drawer to a holder in due course, and is said to be an indorser Pour aval; that is, he has really entered into a contract of warranty for the drawer, by putting his signature at the foot of the bill; for the indorser by signing below the indorse ment; or for the acceptor by signing below the ac ceptance.
It has been laid down that a signature placed upon an instrument, in such a way that it is doubtful in what capacity the person signing intended to sign, makes the person signing an indorser.
An indorsement to the cashier of a bank or cor poration, while not regular, is deemed to be on its face, to the bank or corporation of which the cashier • is an officer, and the bank or corporation may nego tiate the instrument with its own indorsement, or by having the cashier indorse it. And where one part ner of an English firm did business for the firm in America in his individual name, the firm was held liable on indorsements by him. The signature of the name of the firm is equivalent to the signatures of all persons liable as partners in that firm.
15. Transfer without indorsement.—We have al ready seen, in an earlier section, that when a nego tiable instrument drawn to order is transferred by as signment or otherwise, without indorsement, the per son to whom it is transferred may demand the in dorsement of the transferor. Such a transfer is not a negotiation of the instrument, which does not become negotiable until it is indorsed. Without such in dorsement the indorsee has merely such rights as the indorser had. When a person signs a bill in a trade or assumed name, he is liable thereon as if he had signed it in his own name. Thus, when a bill. was drawn and indorsed by a wife in her own name in the presence of her husband and under his direction, it was treated as the bill of the husband, and he was held liable.
A partnership note is signed "Evans, Harris & Co." by a member of the firm, and this signature op erates as the signature of all partners in the firm, whether they are active, dormant or secret; by holding themselves out as partners they are liable as such to third parties. The reason for this is, as we shall
see later, when we come to study the subject of part nership, that each partner is supposed to have the con sent from his co-partners for all acts connected with the partnership business.
16. Delivery.—The first element of negotiation is, as we have seen, indorsement. The second is de livery. Delivery means the transfer of possession, actual or constructive, from one person to another.
By constructive possession is meant, for instance, the actual possession which a servant or agent may have on behalf of his principal, who thus has the con structive possession. But, as Maclaren points out, delivery does not always imply an actual transfer from one possessor to another. Thus, if A holds a note for 13, A may become the owner of it by some arrangement between himself B, and delivery is complete without an actual change of possession, if it can be said that it has been made or under the au thority of the party drawing, accepting or indorsing, as the case may be. Delivery is the final step which perfects the existence of the contract, and even tho the bill or note may have been placed in the hands of an agent for delivery, until it has been delivered it may be recalled. As between immediate forces, as, for example, between the maker and the payee, the indorser and the indorsee, and as regards a holder not in due course, delivery to be effectual must be ac tually made. It may be shown also to have been con ditional, or for a special purpose only, and not for the purpose of transferring property in the bill. H, however, the bill is in the hands of a holder in due course, a valid delivery by all parties prior to him, so as to make them liable to him, is presumed. So when a debtor made a promissory note in favor of a creditor for the amount of his claim, and died before delivering it, the note is not valid if delivered subse quent to the debtor's death. It has been held, also, that as a letter, when posted, becomes the property of the party to whom it is addressed, if it contains a bill, this is a delivery.' It has also been held that when a bill was specially indorsed and inclosed in a letter addressed to the indorsee, and, having been placed in the office letter box of the indorser, was .stolen by a clerk before posting or delivery, and the clerk forged an indorsement and negotiated the bill, the property in the bill remained in the indorser. So, when A mailed a note payable to bearer, and it was stolen by C, who handed it to X upon receiving the amount of the note, and X did not know that C had stolen it, X is a holder in due course and may re cover from A; but as between A and C, there was no delivery, and as they were immediate parties, C could not recover from A. A would, however, have to show that the note had been stolen.