use, in the name of the party holding the bill at maturity.564 So, the But, to support a recovery against the acceptor, the drawer must prove the acceptor's default, and payment of the bill by himself.569 And where the drawer takes up a bill by voluntary payment to one who has paid it supra protest, after the drawer's discharge for want of notice, he cannot sue the payee on his indorsement.570 And he cannot sue the payee as indorser without rebutting the presumption of his own prior liability arising from their relative position on the paper, 571 Action by Executor-Heir. § 1642. Where the payee is named expressly as "administrator of A.," he may bring an action in his individual name, treating the additional words as mere description,572 or he may bring suit in his 564 Davis v. McConnell, 3 McLean, 391, Fed. Cas. No. 3,640. And such payment by the drawer will be no defense for the acceptor. Williams v. James, 15 Q. B. 498. 565 Louviere v. Laubray, 10 Mod. 36. 566 Coursin v. Ledlie's Adm'rs, 31 Pa. St. 506; Kingman v. Hotaling, 25 Wend. (N. Y.) 423. 567 Thompson v. Flower, 1 Mart. N. S. (La.) 301. 568 Pilkington v. Woods, 10 Ind. 432. 569 2 Daniel, Neg. Inst. 238; 2 Pars. Notes & B. 453; Quinn v. Hanley, 5 Ill. App. 51. 570 Grosvenor v. Stone, 8 Pick. (Mass.) 79. 571 Thoms v. Greene, 6 Mo. 482. 572 Gilman v. Horseley, 5 Mart. N. S. (La.) 661; Barnes v. Modisett, 3 Blackf. (Ind.) 253; Rateliff v. Everman, 87 Ind. 446; Moss v. Witcher, 35 Tex. 388. So, A. may sue on a note to "A., executor of B." Evans v. Gordon, 8 Port. (Ala.) 142; Litchfield v. Flint, 104 N. Y. 543, 11 N. E. 58. And see § 440, supra. And suit will survive, either to his personal representatives or to the administrator de bonis non of the original estate. Wood v. Tomlin, 92 Tenn. 514, 22 S. W. 206. So, if a note is payable to "A. B., guardian," his administrator may sue, and the equitable interest of the ward cannot be set up in defense. Eckford v. Hogan, 44 Miss. 398. representative capacity.573 And if a bill is indorsed to A., as adminis trator of B., for a debt to B., an action may be brought upon it by an administrator of B. afterwards appointed de bonis non.574 Where one of two executors gives his note or bond to the other as "executor," and expressly for money borrowed from the estate of their testator, the executor of the payee so named may bring suit against the maker, even before settlement made by him with the original testator's estate. An executor, however, can only sue as such on a note payable to the order of his testator, and not indorsed by him.576 But if the note has been indorsed in blank by the testator, and put into a bank for collection, and comes after his death into the hands of the executor, he may bring suit upon it in his own name, under the blank indorsement, as bearer.577 And he may sue in his own name under 375 a blank indorsement to his testator.578 A foreign executor may bring suit upon a note payable to bearer in his own name as bearer. 579 And it seems that in Virginia an executor appointed in another state, where the payee resided at his death, may sue upon a note payable to his testator, by virtue of the foreign letters.580 It has been held, however, that, even where letters were taken out in the state of Maryland before the separation of the District of Columbia, the administrator's indorsee could not sue in the District of Columbia without taking out fresh letters there." 581 Where a note is indorsed to one who is dead at the time, but not known to be so, suit may be brought on it by his administrator.5 173 Sasscer v. Walker's Ex'rs, 5 Gill & J. (Md.) 102. 582 574 Catherwood v. Chabaud, 1 Barn. & C. 150. So, where the original executor was a surety on the note, and could not have brought suit against himself. Moore v. Randolph's Adm'r, 70 Ala. 575. 175 Alston v. Jackson, 26 N. C. 49. 56 Woodbury v. Woodbury, 47 N. H. 11. And a collateral mortgage can only be foreclosed by him. Morse v. Clayton, 13 Smedes & M. (Miss.) 373. Such a note is no ground for equity jurisdiction. Nash v. Hogan, 45 N. J. Eq. 108, 16 Atl. 433. * Barlow v. Myers, 24 Hun (N. Y.) 286. 572 Pars. Notes & B. 446. 579 Knapp v. Lee, 42 Mich. 41, 3 N. W. 244. 550 Giddings v. Green, 4 Hughes, 446, 48 Fed. 489. And this is provided expressly by statute in Virginia.53 And in some states the widow of a deceased holder is allowed to bring suit on a note payable to him without administration, where she is his only heir at law.584 But in such case the complainant must aver all necessary facts to show her right to recover.585 Where one is entitled to a note by a donatio causa mortis from the payee, he may bring an action against the maker in the name of the payee's personal representative, ,586 even without the indorsement of the payee, and without the consent of the administrator.587 Action by Indorser. § 1643. When a bill or note is taken up at maturity by an indorser, he may at once bring suit against prior parties, but he can only do so upon payment made by him.588 And he need not prove notice of dishonor sent to himself, provided such notice has been duly received by the party sued.589 If he takes up the paper by another note, it will be sufficient payment to support his action.590 And, if an accommodation indorser pays the note, he may recover against the maker, either as purchaser of the note, or in an action for money paid. 591 An indorser, upon paying a bill or note, may enforce a col 583 VIRGINIA (Code, § 2854). 584 Begien v. Freeman, 75 Ind. 398; or his mother, Spencer v. Millican. 31 Tex. 65. So, the heirs may sue in Iowa if there is no admission for five years. Phinny v. Warren, 52 Iowa, 332, 1 N. W. 522, and 3 N. W. 157. 585 E. g. relinquishment by the widow of her statutory $500. Williams v. Riley, 88 Ind. 290. 586 Grover v. Grover, 24 Pick. (Mass.) 261; Sessions v. Moseley, 4 Cush. (Mass.) 87. And see § 807, supra. 587 Bates v. Kempton, 7 Gray (Mass.) 382. 588 2 Daniel, Neg. Inst. 238; 2 Pars. Notes & B. 453; Bradford v. Bucknam, 12 Me. 15; Small v. Jones, 8 Watts (Pa.) 265. And see § 1429 et seq., supra. But if the maker of a note gives the indorser a demand note for his indemnity on his agreeing to take up the original note, he may have an attachment against the maker's property on the demand note before the original note matures or is paid by him; but there can be no recovery for more than he pays on the original note, nor until he has paid it. Little v. Little, 13 Pick. (Mass.) 426. 589 Ellsworth v. Brewer, 11 Pick. (Mass.) 316. 590 Bullard v. Wilson, 5 Mart. N. S. (La.) 196. 591 Barker v. Parker, 10 Gray (Mass.) 339. And see § 1433, supra. lateral mortgage.592 But his paying a judgment rendered against himself and the maker will not entitle him to proceed summarily, under the statute as to sureties, against a prior indorser.593 An indorser who takes up a bill or note at maturity sues upon it in his own right.594 And, if the bill has been transferred in payment of a precedent debt, the holder may bring suit as a bona fide purchaser for the use of the indorser after payment by him.595 But an indorser taking up commercial paper cannot sue in the name of a later indorsee without his consent.596 If the maker, however, confesses judgment to the indorser, and judgment is rendered at the same time against the maker in favor of the indorsee, the court will protect the indorser by an order giving preference to his execution.597 Plaintiff's Indorsement Canceled. § 1644. Where there are several indorsers, an action need not be brought in the name of the last holder, but any indorser may sue on striking out the subsequent indorsements.598 If an indorser takes up the note after protest, he may strike out his indorsement and recovery can be on the note only, Kennedy v. Carpenter, 2 Whart. (Pa.) 344. He may sue in the name of the payee, Bank of Spencer v. Simmons, 43 W. Va. 79, 27 S. E. 299; or by delivery from, and for the use of, his own indorsee, Berney v. Steiner, 108 Ala. 111, 19 South. 806. 592 Page v. Green, 6 Conn. 338. 193 Devinney v. Lay, 19 Mo. 646. But, if he pays pending suit against himself and the maker, he may continue the suit as against the maker. Oneida Co. Bank v. Lewis, 23 Misc. Rep. 34, 51 N. Y. Supp. 826. 594 Chit. Bills, 609; 2 Pars. Notes & B. 455; Cowley v. Dunlop, 7 Term R. 571; Death v. Serwonters, Lutw. 272; Bosanquet v. Dudman, 1 Starkie, 2. 595 Poirier v. Morris, 2 El. & Bl. 89; Bank of America v. Senior, 11 R. I. 376. But not without the indorser's consent. Workingmen's Building & Loan Ass'n v. Roumfort, 98 Pa. St. 85. 596 Byles, Bills, 410. And the objection may be raised by the defendant, as well as by the indorsee. Coleman v. Biedman, 7 C. B. 871. 597 Bank of Auburn v. Throop, 18 Johns. (N. Y.) 505. 598 Chit. Bills, 605; 2 Daniel, Neg. Inst. 238; Stones v. Butt, 2 Cromp. & M. 416, 2 Dowl. 335; Bond v. Storrs, 13 Conn. 412, including his own indorsement; and whether that was for value or for collection only, Warren v. Gilman, 15 Me. 70. And if it has been indorsed by him and reissued several times, he may strike them all out. Reading v. Beardsley, 41 Mich. 123, 1 N. W. 965. As to the power to strike out indorsements, see § 716 et seq., supra. 603 bring suit in his own name.599 And he may strike out a blank indorsement by himself at the time of trial.600 And indorsees may sue in the name of the payee, striking out a special indorsement to themselves, even at the time of trial.601 So, after a special indorsement to A., and an indorsement in blank by him, the payee, on recovering possession of the bill, may sue the acceptor as payee, disregarding or striking out the indorsements.602 So, after filling a blank indorsement specially to a collecting agent, but not expressly for collection, the indorser may strike out his special indorsement, and bring suit in his own name under the original blank indorsement." And if the payee sues upon a note, with special indorsements apparently erased by a line drawn through them rendering them almost illegible, he need not show that he is the owner, or that the indorsements were for collection only.604 If, on the trial, several blank indorsements, including that of the plaintiff, appear on the note, the plaintiff may strike out his own, and fill up the others to correspond with the allegations in his declaration. 605 And where his indorsement is erased it will be presumed that he is the owner, and that the indorsement was erased by proper authority.606 And if he has lost the note after indorsing it, and is therefore unable to strike out the indorsement, he may bring suit, as the real party in interest, in the indorsee's name."97 Plaintiff's Indorsement Uncanceled. § 1645. The holder's own indorsement left uncanceled on the note will not, in general, prevent his recovery; but from his possession it will be presumed that the paper was not delivered under the indorse 599 Witherell v. Ela, 42 N. H. 295; Caldwell v. Evans, 5 Bush (Ky.) 380. 600 Parks v. Brown, 16 Ill. 454; although the note is negotiated in bank, and therefore equivalent to a foreign bill, Bell v. Morehead, 3 A. K. Marsh. (Ky.) 158. So, a blank indorsement for collection may be struck out. Manhattan Co. v. Reynolds, 2 Hill (N. Y.) 140. 601 Kyle v. Thompson, 3 Ill. 432. 602 Green v. Jackson, 15 Me. 136. 603 Bank of Utica v. Smith, 18 Johns. (N. Y.) 230. 604 Dollfus v. Frosch, 1 Denio (N. Y.) 367. 605 Pickett v. Stewart, 12 Ala. 202. 606 Goddard v. Cunningham, 6 Iowa, 400. 607 Leavitt v. Cowles, 2 McLean, 491, Fed. Cas. No. 8,171, |