delivered the opinion of the Court.

It is insisted on the part of the plaintiff in error, that the replication is insufficient, and the judgment should be reversed. On the part of the defendants in error, that it is sufficient, and even if not, that the plea is bad in substance, and insufficient to bar the action.

Is the replication a sufficient answer to the special plea?

The plea alleges, in substance, that the endorsement upon which the suit is brought, was made at Chicago, in Illinois, and that the measures required by the laws of that state had not been taken, to charge the endorser; — assuming tbe'principle that the law of the place of the making of the contract, is to govern as to its legal effect.

The replication consists of a formal traverse, with an inducement. This is a proper mode of pleading when a party sets up, in bar of his adversary’s pleading, new facts inconsistent with those alleged by him. After stating the facts which constitute his answer to the previous pleading, he concludes witli a formal traverse of one or more of the material facts alleged by his adversary* and which are inconsistent with the truth of his own. By resorting to this course, instead of a general denial of the matter pleaded, or of a material point presented, the facts are placed on the record, and the legal question arises of their sufficiency or insufficiency as an answer to the case made by the pleading to which they are interposed.

As to this mode of pleading, it is a rule that the new matter stated as inducement to the traverse, must appear to be sufficient in substance, to defeat the opposite parly’s allegation, and if a defective title be shown, the inducement will be bad, though in stating it, so much certainty *113does not appear to be requisite as in other parts of pleading, because it is seldom traversable, — the other party being compellable, in his rejoinder, or other pleading, to adhere to his own allegation, which has been traversed. Also, the traverse must not be of immaterial matter, and must not be too large or too narrow. But if defective, or if there be none, it can only be taken advantage of by special demurrer, and is aided on general demurrer, or by pleading over, — the material part of the pleading being the facts which are set up inconsistent with, and in answer to, the opposite pleading. 1 Chit. PI. 539; 1 Saund. R. 14, n. 2.

Are then the facts set out in the inducement to the replication, inconsistent with those averred in the plea, and in substance a sufficient answer to it?

The material averment of the plea which the replication assumes to answer, is. that the indorsement of the note was made at Chicago, in Illinois, — making the place of the contract of indorsement the material point. The replication then alleges that the indorsement (as well as the note) was made for the purpose of being discounted by the plaintiffs, (I mean the plaintiffs below, and for convenience, shall thus designate them hereafter in this opinion,) at their banking house, at St. Joseph; that it was there discounted, and was there delivered to them by the defendant, for the purpose of being thus discounted. In other words, that the note was presented, by the defendant, the endorser, to the plaintiffs, at their banking house, at St. Joseph, for discount; that it was there discounted by them, — that is, the money was advanced and paid to him for the note, — and that concurrently therewith, the note endorsed was by him delivered to the plaintiffs. If this be the true construction of the replication, it seems evident that the contract of endorsement was made at St. Joseph, and not at Chicago; for there is not only the delivery of the note and endorsement to the plaintiff, by the defend*114ant, but the-negotiation'of it by sale, and receipt of the consideration, — the money paid upon the discount. Upon this view the averments are a sufficient answer to the plea; and upon- a close examination of the replication, this seems.to be its true construction. It is urged by the counsel for the defendant, that, by the replication, the endorsement at Chicago is admitted, and the other allegations are merely of facts which would be evidence to disprove what is thus admitted. This argument arises from the equivocal use of the word “endorse.” It is sometimes used to indicate the contract by which the transfer is made by the endorser, of which the writing the name on the paper is a part and of which it is yrima facie the evidence, and usually the entire evidence; at other times, it denotes the mere writing of the name on the paper. When used, the context must determine the signification in which it is used. In the plea, the defendant uses the terms endorse and deliver, though a delivery, in the use of the term first mentioned, is involved in the endorsement to the endorsee, and an averment of such endorsement is sufficient without adding an averment of a delivery. In the replication, the word is obviously used to indicate the writing the name on the paper, and the contract is set out. The mere writing the name, with nothing further, the paper remaining in the parties’ possession and control, does not create the liability.

It is further insisted that the traverse is too narrow :— First, that it is of the delivery only of the note, and not of the endorsement; but it is of the delivery of the note in manner and form as alleged in the plea, and the delivery there alleged, is, in substance, with the endorsement upon it. Second, that a traverse of the delivery is immaterial, and that the'endorsement may be consummated and create a liability before an actual delivery. We have already seen, that upon a general demurrer, such defect, if it exist, *115is unavailable where the previous inducement is in substance sufficient. But it is urged in support of the replication, that a delivery, or what by legal construction amounts to it, is necessary to consummate the contract of the endorser. In the view above taken of the replication, its sufficiency is not regarded as turning upon the isolated fact of the delivery, inasmuch as the contract is set out in it. 1 have, however, given the question considerable examination; and, the general principles applicable to contracts, as well as the authorities cited, particularly that of Story in his treatise on Bills, and the cases of Cox v. Tracy, 7 E. C. L. R. 163, and Adams v. Jones, 40 E. C. L. R. 94, indicate very strongly that, to consummate the endorsement, there must be a delivery in fact, or what, by legal construction and effect, amounts to a delivery.

It was urged that the averments in the replication would be sustained by proof that the note was delivered by a subsequent holder; — that, by the endorsement, authority is given to him to negotiate it, and the delivery by the authority of the endorser thus given, is his delivery. So far as regards the note, this position is correct. So far as regards the contract of endorsement, the delivery would be of it, as it was made, and -would no more vary that, than it would that of the note, which had been previously consummated. And the proof of the negotiation and delivery, by a subsequent endorsee, would not be proof of the contract alleged in the replication, between the endorser and the plaintiffs. When blank endorsements are stricken out, and the plaintiff declares on an endorsement directly to himself, he recovers on the contract of the endorser with his immediate endorsee, being substituted for him. So in the case of an accommodation endorser, who delivers the note to the maker, and the maker negotiates it. Such proof, in this case, would not sustain the allegations in this replication. In the case put of negotiation by an agent, *116the time and place when and where the legal liability of the endorser arises, must necessarily depend upon the circumstances of each case; showing the period at which it passes from his hands a perfect endorsement in respect to the subsequent holder. In this case, it appears to me the facts stated in the replication would be sustained by proof that the negotiation and delivery alleged, wei’e through the insti'umentality of an agent.

It is said by the counsel for the plaintiff in error, that there is no material fact in the replication upon which he could take issue. According to the rules of pleading, I see no difficulty in the way of putting in issue the whole matter of the replication, by taking issue upon the traverse in it, of a material fact contained in the plea, (and such the travei'se in this case seems to me to be,) which would be by re-asserting the matter travelled, and concluding to the country; or, if that travei'se were immaterial, then by re-asserting the substantive matter of the plea answered by the x-eplication, and traversing the latter, and concluding to the country. Upon the whole, then, we deem the replication a sufficient answer to the plea, and the judgment should therefore be affirmed.

Judgment' affirmed.