Had the instrument declared on iri this case been an ordinary promissory note, the ease would hav'e presented little difficulty. Where a note of that kind is endorsed in blank, the endorsee may sue in his own name, or in the name of the payee for his own use. The latitude of authority contained in the blank endorsement, being sufficient for either purpose, and conferring that option Upon the endorsee.
But where the endorsement is special the c'ase is' different. If made in the usual manner (as in the present'instance) the legal interest passed entirély to the endorsee. No choice is left him. He cannot regard himself as agent or attorney of the payee to collect the money for his own use; which a blank endorsement would have authorized him to do. The will of tiic endorser is specifically expressed, and becomes a part of the instrument. The endorsee has no more right to erase or change the endorsement than he has the face of the note¡ He can only sue in his own name.
The note may however again come into the legal possession of the payee, either in (he course of trade or by making payment in discharge of his liability to the endorsee. In either of these cases he would have a right to erase the endorsements whether general or special and to bring the suit in his own name as payee. The reason why this erasure could Mt be made by any other person is that the endorsement is a speaies of *19transferable contract, or at the least the evidence of one — which neither party alone has a right to rescind. The pa1 ties interested in that contract are the payee of the note on the one side, and any endorsee and 'holder of the note on the other. By the mutual agreement of these parties all the endorsements may be erased. When the note comes again into the legal possession of the payee both the parties in interest in the contract aforesaid become united in the same individual, who has-therefore power to expunge all the endorsements ,on the note and to sue in the same manner as though he had never parted with the possession of it.
There is some diversity of opinion as to the proof necessary to show that the note has again come into the legal possession of the payee. In Dugan vs. The United States, 3 Wheat. 183, it was held that it was not necessary for the. payee to produce any receipt or endorsement bach tp himself. The bare possession of the note by the endorser has sometimes been held prima facie evidence that he was again the legal owner thereof 1 Dall. 193 and note. But in the case of Long et al. vs. McCarty, 2 Dall. 147, proof of actual payment to the endorsee was considered necessary to enable the endorser to sue in his own name.
But whatever the strength of the presumption in favor of the payee who has again obtained the actual possession of the note, the mere fact of a suit being instituted in his name for the use of the endorsee is of itself do evidence whatever that the payee is in possession. The endor-see may have brought the suit in that form without his consent or Knowledge. At all events the mere institution of a suit in that form raises no presumption that the payee is again in thfe legal possession of the note, and was so held in the case of Bowie for the use of Ladd et al. vs. Duval 1 Gill and Johns. 175. If therefore the instrument on which this suit was brought had been a mere promissory note there was evidently error in the court below.
That instrument was however under seal, which places the case in quite a different attitude. In the absence of special statutory provisions on the subject this would be the safest if not the only mode-in which the endorsee of a writing obligatory could institute his action against the maker. The instrument being under seal the action must be debt, and there is very high authority for the conclusion that the endorsee cannot sustain debt against the maker of a negotiable instrument. See Chitty on, bills 672. But more especially Chitty's Pleadings 117 and 124. If this be the case, and if the indorsee be also prevented from suing in the name of the payee for his own use he will be denied all remedy. A conclusion which never can be tolerated. Whether the endorsee can sustain debt against the maker or not we will not now further inquire: but in the face of so respectable authority a plaintiff ought never to be driven to the necessity of trying such doubtful experiments. The safe and proper mode to have brought the suit would, have been that adopted in the present case.
But it is- contended that the statute of Michigan which was in force here when this instrument w-as executed and endorsed had changed the fbrmer law in this particular. That statute makes “all notes ,in writ*20ing” negotiable, and authorizes the indorsee to maintain an action thereon against the makers and endorsers in like manner as in inland bills of exchange and not otherwise. Now there is much doubt whether this statute is broad enough to embrace sealed instruments, but even if it were, it only authorizes the endorsee to maintain an action “in like manner as in inland bills of exehange and not otherwise.” If at that time the action of debt would not have lain by the endorsee against the maker, that statute can hardly be considered as changing the law in this particular and depriving the endorsee of the privilege of bringing suit in the accustomed form. We therefore conclude that the law as it existed at the time this instrument was executed and endorsed permitted the endorsee to use the name of the payee as the plaintiff in an action against the maker.
But the statute of Iowa which' took effect a few days previous to the institution of this action not only renders sealed instruments negotiable, but authorizes the endorsee to maintain “the same kind of action” against the maker as might have been maintained against him by the obligee or payee in case there had been no assignment of the bond or note, &c. The endórsete could now clearly maintain the action of debt against the obligee or payee, and perhaps on an instrument endorsed subsequently to the passage of that act the endorsee would be bound to sue in his own name. But not so where the endorsement was made prior to the taking effect ofthat statute.
It is true that the form in which the action, is brought is amatter that pertains to the remedy to a certain extent rather than to the rights of the parties. This is so much the case that although an instrument had been assigned prior to the enactment of the lowa statute, when the law required the assignee to sue in the name of the assignor, still (if the terms of that statute aré sufficiently comprehensive) that same assignee might-sué in his own name. Yet if he prefers he may bring suit in the name of the assignor for such is the implied permission given in the assignment. The law at the time entered into the agreement between the endorser and endorsee, and the former thereby authorized the latter to sue the maker in his (the endorsers) name. The subsequent lawhas not deprived him of this right. We are therefore of the opinion that the endor see in the presentinstane'e had a right to sue in the name ofHendershott for his use, and that the decisions of the court below tvere therefore correct.
Judgment affirmed accordingly.