QJnrtiFU Ham frljflfll ICibtarg KF 957.0187879'™"'""-"'"^ V.1 A treatise on the law of negotiable inst 3 1924 018 851 976 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018851976 A TREATISE ON THE LAW OF NEGOTIABLE INSTRUMENTS. INCLUDING JBILLS OF EXCHANGE; PROMISSORY NOTES; NEGOTIABLE BONDS AND COUPONS; CHECKS; BANK NOTES; CERTIFICATES OF DEPOSIT; CERTIFICATES OF STOCK; BILLS OF CREDIT; BILLS OF LADING; GUARANTIES; LETTERS OF CREDIT; AND CIRCULAR NOTES, By JOHN W. DANIEL, OF THE LYNCHBURG (VA.) BAR. " Out of the old fieldes, Cometh al this new corne."— Chaucer. "Noneritalia l«x Romse, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex obtinebit.'' — Cicero. m TWO VOLUMES. VOL. I. SECOND EDITION. NEW YOEK: BAKEK, VOOKHIS & CO., PUBLISHERS, 66 NASSAU STREET, 1879. -^ Ij^/Y^d Entered, according to the Act of Congress, in the year eighteen hundred and seventy-six, by JOHN W. DANIEL, In the office of the Librarian of Congress, at Washington. Copyright by John W. Daniel, 1879. BAKER & GOD'WIN, PRINTERS, No. 25 Park Row, New York. KF I =5 T1 TO CHARLES O'COlSrOE, Esq. ' 'WHO, AS A LAWYER, HAS DIGNIFIED HIS PBOPESSION BY HIS UPIIIGHT CHARACTER, AND ILLUSTRATED IT WITH THE TEIU.MPHS OF HIS GEl^IUS AND WHO, AS A PATEIOT, HAS NEVER FAILED IN FIDELITY TO THE PRIKCa.PLES OP LIBERTY PROTECTED BY LAW, THIS WORK IS WITH HIS PERMISSION RESPECTFULLY INSCRIBED BY THE AUTHOR. PREFACE TO THE SECOND EDITION. The rapid sale of the first edition of this work has demonstrated the correctness of the opinion expressed by its author, that a treatise on the subject of " Negotiable Instruments " was a desideratum to the legal profession ; and the flattering utterances with which it has been received by the bench and bar induce him to hope that he has not altogether failed in his effort to supply it. In response to continuous demands, a second edition is now put forth, containing one hundred and four pages of new matter, and citations of over a thousand cases not embraced in the first edition. The important adjudications of the English and American courts since the spring of 1876 have been carefully collated, and the text presents, as the author hopes, a faithful record of " The Law of Negotiable Instruments," as it is now interpreted and practiced. To those who have so generously encouraged and favored his work the author returns his thanks, and to his publishers, Messrs. Bakee, Vooehis & Co., he begs leave to renew the assurances of his highest consideration. J. W. D. Lynchburg, Va., June, 1879. PREFACE TO FIRST EDITION. When Lord Holt, in the year seventeen hundred and three, indignantly denied that promissory notes payable to bearer were negotiable and inveighed against the "obstinacy and opinionative- ness of the merchants who were endeavoring to set the law of Lombard street above the law of Westminster Hall," he had no prophetic vision of the great part which negotiable instruments were to play, in the transactions of commerce, and little dreamed that the struggling idea of Lombard street was destined to develop, expand, and diversify itself, until it overspread the civilized globe. From that day to this, negotiable instruments have been a subject of such rapid and continuous growth that the sheets of the various compilations on the subject have scarcely dried from the printer's hand, ere they have successively become historic records rather than mirrors of existing things. It is true that certain general principles permeate the law affecting every variety of negotiable instruments, and that in Malynes, Marius, Molloy, and Beawes, we may yet find the rudiments of that system which in our own day has received ample illustration from the hands of Story and Parsons ; but the pioneer who stood on the borders of our western civilization thirty years ago, and who to-day sees the same landscape, then covered with primeval forests, or stretching wide in solitary prairies, now brilliant with gorgeous cities, and teeming with the industries of crowded millions, recognizes a change not more marked than that which has been exhibited in the rapid and diversified development of the subject of our treatise. And the development was scarcely more marked in the long period elapsing between the days of the first commentators to whom we have referred and the last, than it has been since the latter put forth their admirable works. Chancellor Kent remarks, with an evident spirit of congratulation, that "the law of negotiable paper has at length become a science which can be studied with infinite advantage in the various codes, treatises, and judicial decisions, for in them every pr,)ssible view of the doctrine in all its branches has been considered, its rules established, and its limitations accurately defined." But when Chancellor Kent wrote. PREFACE. Vll liis Commentaries, such a thing as a coupon bond was unknown in the United States. When Story sent forth his treatises on Bills and on Notes from Cambridge, it was yet a feeble adventurer, timidly feeling its way on the stock exchange. And although when Pro- fessor Parsons published his work in 1862, it had been recognized as a negotiable instrument, and was becoming familiar to the public eye, the law concerning it was yet in such an inchoate state that a few pages comprehended all that he saw fit to say about it. Now there is no more important figure in financial circles than a coupon bond. There is scarcely a town or county in the United States that has not become interested in it, and the law relating to it has grown into an important title, which would fully justify its embodiment in a separate and independent work. We find, ^Iso, an increasing dis- position to impart certain negotiable qualities to instruments and documentary evidences of title, which, by the common law, are as devoid of such qualities as any chattel sold behind the counter of a merchant. In some of the States, bonds are placed on the same footing as promissory notes. In some of them deeds to real estate and docketed judgments, are just as negotiable as bills of exchange; and in all of them, so to speak, the spirit of negotiability is enlarging its bounds, extending its influence, and impressing itself upon mercantile transactions. These reflections have led to the production of this work. It is the first effort to embrace in one treatise a classification of aU negotiable instruments, with an exposition of the law touching each variety of them. And this has seemed to us the most convenient and philosophical mode of presenting and expounding the law, not- withstanding the views expressed by that great jurist and author, Justice Story, who followed, as he favored, a difl'erent plan. To him it seemed (as he states in the preface to his work on Bills of Exchange), that " great practical inconvenience " would result " from uniting and intermixing the doctrines respecting bills of exchange and promissory notes in one and the same treatise ; " and if his idea be accepted, still greater practical inconvenience would result from gathering under one roof all the members of the negotiable family. But his own learned productions, to our mind, rebut his theory. Whole sections and pages — -and, indeed, we may almost say chapters — of his treatise on Bills are literally transcribed in the succeeding one on Notes. And while there are certain distinctions always to be observed between the two classes of papers, there are more identities m, than difl'erences between, them; and the differences can always be readily recognized and defined. To use Tennyson's phrase, they are VIU PREFACE. " alike in difference." Indeed, not only may bills and notes be con- veniently treated in conjunction with each other (as in fact they have been most successfully treated by Bayley, Byles, Thomson, and Parsons) ; but their kindred which are " bone of the same bone and flesh of the same flesh," are like the sciences, which, Lord Bacon says, "dwell sociably together." Checks, so closely assimilated to bills of exchange that they are sometimes called " peculiar kind of bills," may be fully treated under the same cover with bills, by simply pointing out their pecahar differences and uses. Coupon bonds, so nearly identical with promissory notes that they might be fitly termed " peculiar kinds of notes," may be thoroughly explained by exhibiting their peculiar variations from them in form, and in the functions which they fulfill. And every species of instru- ment, really or quasi negotiable, may be either thoroughly expounded or, at least, aptly illustrated by a delineation of its lines of departure from the general principles which apply to these two great species of the negotiable genus, bills of exchange and promissory notes. Such, at least, have been the considerations which inspired the undertaking, the fruit of which is now with diffidence submitted to a practical and critical, but liberal profession. Composed in hours snatched from other exacting labors of the office and the bar, the author cannot hope that it will be found free from many crudities of style and other more serious imperfections ; but if it contain aught of merit, he feels assured that an enlightened profession will not fail to discern it, nor to apply it as equitable offset to those defects which only the amplest resources of leisure and learning could avoid. To Mr. P. C. Nicholas, Librarian of the Supreme Court of Appeals of Yirginia, the author is much indebted for many courtesies extended and many facilities afforded him, while pursuing his in- vestigations in the ample collection of books under his charge ; and he begs leave here to acknowledge his obligation and record his thanks. He would be lacking in appreciation and gratitude, did he not also here express to his publishers, Messrs. Bakeb, Vooehis & Co., of New York, his sense of the liberal and unremitting kindness with which they have aided and encouraged his work. They have been lacking in nothing that fairness could ask of them, or that an accommodating spirit could suggest to .them ; and he only trusts that the result may leave them no cause to regret their own generous, course. J. W. D. Ltnohbueg, Va., April, 1876. TABLE OF CONTENTS OF VOLUME L BOOK I THE MAKING OF THE INSTRUMENT. CHAPTER I. page- Nature, History and Uses of Negotiable Instruments, . 1 Section I. Nature, origin and history of bills and notes, . . 1 II. Foreign and inland bills, .... 7 III. The effect of a bill of exchange. Whether or not it is an assignment, . . . . .12 IV. Donatio mortis causa, .... 22 OHAPTEE II. Definition and Essential Requisites of Bills and Notes, . 26 Section I. The bill or note must be open, that is, unsealed, . 28 II. Certainty as to the engagement to pay, . . .31 III. Certainty as to the fact of payment, , . 35 IV. Certainty as to the amount to be paid, . . .44 V. Certainty as to the medium of payment, which must be money, ...... VI. The contract must be only for the payment of money, 50 VII. Delivery, 56 46 OHAPTEE III. Formal Requisites of Bills and Notes, . . . .64 Section I. Formality in respect to style and material, . . 64 II. Formal elements and phrases of bills and notes, . 72 III. The several parts of a foreign bill called a set, . 97 X TABLE OF CONTENTS. CHAPTER IV. PAGE Stamps upon NseoTiABLE Instruments, . . ■ • 101 OHAPTEE V. Irregular, Ambiguous, and Fiotitious Instruments ; and Instru- ments EXECUTED IN BLANK, . . . . ■ 109 Section I. Irregular and ambiguous instruments, . . • 109 II. Bills and notes to which there are fictitious or non exist- ing parties, . . . . ■ . 11*> III. Negotiable instruments executed in blank, . . 120 CHAPTEE YI. Memoranda upon Bills and Notes, and Collateral Agreements, 129 Section I. Memoranda upon bills and notes, . . . 129 II. Collateral agreements respecting bills and notes, . 134 OHAPTEE VII. Consideration of Negotiable Instruments, . . .137 Section I. What instruments import a consideration, . . 137 II. By what laws the legality of consideration is deter- mined. Confederate obligations, . . .143 III. Between what parties the consideration is open to in- quiry, ...... IV. What are sufficient and legal considerations, . 153 V. What are illegal considerations, . . .166 VI. Partial want, failure, and illegality of consideration, 175 VII. Renewal bills and notes. How illegality may be purged, 179 BOOK II. WHO MAY BE PARTIES. 146 OHAPTEE VIII. Persons Partially or Wholly Disqualified, . . . 183 Section I. Lunatics, imbeciles, and drunkards, . . . 183 II. Aliens and alien enemies, . . . .188 III. Infants, . . . . . 194 IV. Married women, . • . . . 205 V. Persons under guardianship, and in bankruptcy, . 207 TABLE OF CONTENTS. X] CHAPTER IX. PAGE ITiDuoiARiES AS Parties to Bills and Notes. . . .221 CHAPTER X. Agents as Parties to Bills and Notes, .... 228 Section I. Competency and authority of the agent. Express au- thority and general principles of liability, . . 228 II. Implied authority of the agent, . . . 239 III. How agent should sign ; and how instrument construed and parties' liabilities determined, . . . 244 IV. Liability of agent who draws on account of his prin- cipal, or indorses to him, . . , . . 254 V. Eatification by principal of agent's unauthorized acts, 259 CHAPTER XI. Banks and other Agents for Negotiation or Collection or Ne- gotiable Instruments, ...... 263 Section I. Banks as collecting agents. What constitutes agency, and of whom they are agents, . . . 263 II. Rights and duties of banks or other agents for col- lection, ...... 267 III. The manner of placing commercial paper in bank for collection, and the rights of the collecting bank, . 274 IV. How far a bank is liable for default of a notary, sub- agent, or correspondent bank, . . . 277 V. Remedy of the holder of the paper against collecting agents, ...... 280 CHAPTER XII. Partners as Parties to Bills and Notes, .... 284 Section I. Nature and varieties of copartnership, . . 284 II. The authority of a copartner to bind the firm, . . 287 III. Formal signature of the firm's name, . . 290 IV. Accommodation,— private, — and prohibited transactions of copartner, ..... 296 V. The effect of a dissolution of the firm, . . 302 CHAPTER XIII. Private Corporations as Parties to Negotiable. Instruments, 308 Section I. Authority of the corporation to execute the instruments, 308 II. Authority of the agent in law and in fact to bind the cor- poration, . . . . . .316 III. Interpretation of the instrument, . . . 325 XU TABLE OF CONTENTS. CHAPTER XIV. ■ PAGE Municipal Corporations as Parties to Negotiable Instruments, 345 CHAPTER XV. Drafts or Warrants of one Corporate Officer upon Another, 350 Section I. Drafts or warrants of private corporations, . . 350 II. Drafts or warrants of municipal corporations, . 352 CHAPTER XVI. The Federal and State Governments as Parties to Negotiable Instruments, ....... 358 Section I. General principles of governmental liability, and liabil- ity of agents, ..... 358 II. State securities made receivable for taxes, . . 366 BOOK III. THE NEGOTIATION OF THE INSTRUMENT. CHAPTER XVII. Presentment for Acceptance, ..... 369 Section I. Nature of, and necessity for presentment for acceptance, 369 II. Formality of presentment for acceptance, . . 372 III. Time of presentment fur acceptance, . . 378 CHAPTER XVIII. Acceptance op Bills of Exchange, .... 389 Section I. The nature of acceptance, .... 389 II. What bills require acceptance, and by whom and when they should be accepted, . . . . 391 III. Form and varieties of acceptance. Express and implied acceptance, ...... 400 IV. Verbal and written acceptance, . . . 406 V. Absolute, conditional and qualified acceptance, . . 409 VI. Acceptance for honor, or supra protest, . . 418 VII. The effect of acceptance, .... 426 VIII. Extinguishment of acceptor's obligation, . . 431 TABLE OF CONTENTS. xiii OHAPTEE XIX. A PAGE Promises to Accept Bills of Exchange. Haw Affected by the Statute of Frauds, ...... 439 Section I. Written and verbal promises to accept existing and non- existing bills, ..... 439 n. Ilowparolacceptanceisaffectedby the Statute of Frauds, 450 CHAPTEE XX. Presentment for Payment, ...... 453 Section I. By whom presentment for payment must be made, 456 II. To whom presentment for payment must be made, . 470 III. Time of presentment for payment, . . . 476 IV. Days of grace, and computation of time, . . 488 V. Place of presentment for payment, . . . 500 VI. Mode of presentment for payment, . . . 517 OHAPTEE XXI. Transfer of Bills and Notes by Indorsement, . . . 526 Section I. Nature of the contract of indorsement, and liability of indorser, ...... 528 II. By whom, and to whom, indorsement or assignment may be made, ..... 540 HI. Form and varieties of indorsement, . . 545 IV. Whether or not the party is indorser, maker or guar- antor, ...... 560 V. How far parol evidence is applicable to ascertained in- dorsements, ...... 572 VI. The time and date of tiau^fer, . . . 579 CHAPTEE XXII. Transfer or Bills and Notes by Assignment, . . . 585 Section I. Liability of the assignor of the legal title, . . 585 II. Liability of the assignor of the equitable title, . . 596 OHAPTEE XXIII, The Sale and Discount or Bills and Notes, and the Amount OF Recovery, ....... 603 Section I. The validity of the original negotiation, . . 603 II. The amount of recovery against the maker or acceptor, 608 III. The validity of the transfer, and amount of recovery against the transferrer, .... 619 XIV TABLE OF CONTENTS. CHAPTER XXIV. PAGE Nature akd Eights of a Bona Fide Holder or Purchaser of Bills and Notes, . . . . • • 624 Section I. 5o«a_;?c?«s, and gross negligence, . . . 627 n. What is meant by "valuable consideration," . . 634 III. The ordinary or usual course of business, . . 636 IV. The phrase " before maturity," . . . .640 V. What is meant by " purchaser without notice," . 641 VI. When purchaser stands on same footing as his transferrer, 656 VII. The burden of proof as to bona fide ownership, . 661 CHAPTER XXV. Holder of Bills and Notes transferred to him as Collateral Seouritv ; AND Holder of Bills and Notes secured by Mort- GAaE, ........ 670 Section I. Rights and duties of holder of negotiable instruments as collateral security for a debt, . . . 670 II. Holder of negotiable instruments secm-ed by mortgage, 685 CHAPTER XXVI. Rights of a Bona fide Holder or Purchaser of Negotiable In- struments originating in Fraud, Duress, or Violation of Authority, ....... 68& Section I. Holder of negotiable instruments completed, but not delivered, ...... 689 II. Holder of negotiable instruments incomplete and unde- livered, ...... 693 III. Holder of negotiable instruments intrusted to another in blank, . . . . . .694 IV. Holder of negotiable instruments written over blank signatures, ...... 695 V. Holder of negotiable instruments procured by imposi- tion on infirm or illiterate persons, . . . 697 VI. Holder of negotiable instruments executed under mis- take and misrepresentation, .... 699 VII. Holder of negotiable instruments delivered by third party in violation of instructions, . . . 706 VIII. Holder of negotiable instruments executed under duress, 712 IX. When holder of negotiable instruments is protected by estoppel in pais, . . ' . . _ 'j'14 TABLE OF CONTENTS. XV OHAPTEE XXYII. E AS APPLICABLR TO The Conflict of Law. The Law of Plac Negotiable Instrument, ..... 719 Section L General principles of the law of place, , . . 719- n. Lex loci contractus, ..... 722 III. Lex domicilii, ...... 729 IV. Lex loci solutionis, ..... 732 V. Lex fori, ...... 734 VI. Lex loci rei siice, ..... 740 VII. By what law the liability of the maker, acceptor, drawer or indorser is determined, .... 741 VIII. By what law the validity and effect of transfer, and the rights of the holder are determined, . . 750 IX. By what law the formalities in respect to presentment, protest and notice are governed, . . . 753 X. The revenue laws of other countries. Law applicable to stamps upon negotiable instrum,ents, . . 759 XI. Law applicable to the currency of payment, and inter- est; and damages, ..... 761 Appendix, 769 TABLE OF CASES CITED. The References are to Sections. — §§ 1 to 925 inclusive, are in Vol I, the residue in Vol. II. Abat D. Rion, 987. Abbe 1-. Eaton, 1729. Abbey ». Chase, 307. Abbott V. Agr. B'k, 1691. •0. Bailey, 246. V. Hendricks, 81, 174, 199. ». McKinley, 252, 253. «. Rose, 844. V. Striblen, 1473. Abeel «. Seymour, 396. Abel «. Sutton, 370, 683. Ablei). Alexander, 1316, 1317, 1319. Aborn d. Bosworth, 1173, 1464, 1478, 1481. Abraham e. Dubois, 14. Absolem ». Marks, 683. Ackland «. Pearoe, 674, 1051. «. Blethen, 692. Adams ». Cordis, 917, 1454. «. Darby, 452, 1076. V. Flanagan, 291. B. Frye, 1392. ». Grregg, 543. V. Jones, 667, 748. ■«. King, 99. «. Leiand, 1145. «. Oakes, 1230. «. Otterback, 623, 661. «. Reeves, 1326. B. Robinson, 1644. V. Soule, 187. «). Torbert, 996. V. Wilson, 81. V. Wordley, 517. V. Wright, 1017, 1038. Adams Bank «. Anthony, 1339. V. Jones, 1190, 1785. Addy V. Grix, 688. Adle v. Metroger, 1335. uEtna Nat. Bank v. Fourth Nat. B'k, 1636. African Society «. Varick, 399. Agan v. McManus, 1163. Agnew V. B'k of Gettysburg, 445. Agra & Masterman's B'k, 1798. Vol. 1.— B Agricultural B'k v. Commercial B'k, 343. Ahern ». Goodspeed, 753. Aiken v. Marine Bank, 685. Aillet ». Woods, 205. Ainslee v. Wilson, 1687. Ainsworth ®. Creke, 318. Airey «. Pearson, 1099. Aistley «. Johnson, 354. Alabama Co. «. Brainard, 74, 75, 412, 685. Albeitz v. Mellon, 373. Alcock 41. Alcock, 93. ■n. Hill, 1311, 1319, 1338. v. Hopkins, 1375. Alden «. Barbour, 643. Alderson, ex parte, 33, ■». Langdale, 1411. Aldis 1). Johnson, 611. Aldous 11. Cornwell, 1389. Aldrich v. Grimes, 234. V. Jackson, 731, 738, 1676. n. Smith, 1373. V. StockweU, 176. Aldridge «. Branch Bank, 69. Alesbrook v. Roach, 1219. Alexander's Cotton, 1060. Alexander v. Burchfleld, 333. V. Mackenzie, 280, 399. V. Scott, 940. V. Springfield, 728. V. Thomas, 42. Alexandria Canal Co. ■». Swann, 893. Loudoun, &c. R. R. Co. «. Burke, 833, 1517. Loudoun, &c. R. R. Co. i\ Loudoun, 1517. Alger V. Scott, 23. Allaire v. Hartshorne, 749, 757, 758, 758a, 837, 832. Allan V. Mawson, 133. Alleghany B'k's Appeal, 1615. Allen V. American Nat. B'k, 1637. V. Ayres, 1197. V. Bratton, 889. XVIU Therefmmes\ TABLE OF CASES. \_an to the seciionK Allen v. Clark, 731. V. Culver, 1251. !). Dundas, 261, 161.5. V. Edmundson, 1016, 1038, 1049. 1). Fourth Nat. B'k, 1360, 13(J9. ». Furbush, 157. ■0. Hart, 1422, 1423, 1426. •0. Hearn, 195. ■c. Inhabitants of Jay, 1522. D. Keeves, 1578. V. Kemble, 898, 920, 1451. 4). King, 1083. ». Merchants' Bank, 328, 341, 345, 910, 930. ■K. Miles, 650. ». Newburg, 1197. '). Rightmere, 1769, 1786. V. Sea, Fire & Life As., 35, 426, 1581. ■ii. Sharp, 1369. ». State Bank, 1465, 1479, 1696. 0. Suydam, 329, 330, 454, 465, 564. ■V. Union Bank. 1439. J). Williams, 1736, 1743. Allerton d. Belden, 727. Alley v. Bogers, 325, 335. Allison -0. Juniata County, 431, 432. AUwood ». Hasledon, 1173. Almy v. Reed, 1480. Alnutt «. Ashenden, 1764, 1770. Alsop v. Goodwin, 81. Alston -0. Hartman, 1187. Alves i>. Hodgson, 914. Ameiican Exch. B'k «. Blanchard, 41. Life Ins. Co. ». Emerson, 1045. 9. Oakley, 394. Nat. Bank 'o. Bangs, 1383. Ames J). Brown, 1415. V. Meriam, 1634. Amherst Academy v. Cowles, 741, 743, 1197. Amison ®. Ewing, 413, 414. Ammidown 'o. Woodman, 626, 1209. Amner v. Clark, 8, 9. Amoskeag B'k v. Moore, 1106. Amsbaugh «. Gearbart, 1780. Ancher v. Bank of England, 698. Ancona v. Marks, 1653. Anderson t>. Bullock, 32. 11. Cleveland, 546. V. De Soer, 21, 451, 1644. V. Drake, 460, 639, 640, 656, 1145,1146. ». Heath, 506. D. Hick, 504. T. Langdale, 1377. I'. Magruder, 81. 11. Robson, 1478. «. Royal Exchange As. Co., 612. Anderson c. Shoup, 355. »•. Walter, 351. c. Warne, 1309. V. Weston, 65. Anderton v. Beck, 1124. Andover B'k v. Grafton, 273, 422, 435. 809. Andrews v. Baggs, 513, 514. 11. Blakey, 1576. t). Boyd, 1104,1159. ». Franklin, 45, 46. ». German Nat. B'k, 1590. V. Herriott, 867, 885. ■i\ Hoxie, 11. «. Marrett, 1338. V. Pond, 788, 867, 879, 918, 923, 934, 935. t. Russell, 1505. Androscoggin Bank «. Kimball, 83,143. Angel t. Felton, 1483. V. McClellan, 224. Angle n. N. W. Mat. Life Ins. Co. 143, 788, 789, 1386, 1411. Anketel v. Converse, 1353. Annon ». Hancock, 1437. Anon. 5). Harrison, 288. Ansel J). Baker, 548. Anson v. Bailey, 1163. Anstedi). Sutter, 867. Antoni v. Wright, 448, 1726. Apperson ®. Bynum, 640, 1119, 1180. ». Pritchard, 640. «. Union B'k, 656, 1059, 1060, 1065, 1070. Appleton V. Parker. 1260, 1267. Arayo r. Currill, 891. Arbouin v. Anderson, 175, 774. Arcangelo ®. Thompson, 1053. Archer v. Bamford, 193. ». McCray, 307. Archibald v. Argall, 1360. Areiits B. Commonwealth, 441, 734, 782, 1489, 1490, 1496, 1500, 1505, 1506, 1507, 1513, 1753, 1754, 1769, 1774, 1777, 1798. Argenbright j). Campbell, 32. Arlington ». Hinds, 1187. Armat v. Unioii B'k, 1480. Armfield v. Allport, 138. %. Tate, 234. Armistead %. Armistead, 643, 645. V. Brooke, 1353. w Butler, 1428. D. Ward, 1260, 1372, 1317, 1329. Armour v. Michigan C. R. R. Co., 1733. Arms ». Ashley, 1684. Armstrong b. Christiani, 983. ». Gibson, 759, 764. I'. Pratt, 1433. The referencef] Tx\.BLE OF CASES. [are to tlie seetime. xix Armstrong v. Thurston, 983, 1173. V. Toler, 866. Armswortli v. Scotten, 1673. Arnold v. Camp, 1299, 1300. r. Cheque B'k, 1372(i. V. Dresser, 455, 594, 653, 1149. B. Jones, 1398. V. Kinloch, 954, 983. V. Potter, 894. V. Revonet, 354. u. Richmond Iron Works, 313. V. Rock River, &c. R. R. 51. V. Sprague, 108, 186, 303, 305, 663. V. Stackpole, 303, 305. Arnot V. Erie Railway Co., 386. Arnott V. Redferne, 918. V. Woodburn, 735. Artizan Bank v. Park Bank, 899. Ashby V. Ashby, 103. Ash-fbrd v. Robinson, 1760. Ashley v. Gunton, 1119. Ashton B. Freestun, 1390, 1291. V. Pye, 1386. Ashuelot Man. Co. v. Marsh, 394. Ashurst V. B'k of Australia, 680, 1505, 1506. Aspinall v. Wake, 363, 535. Atkins t\ Blake, 775, 1468, V. Cobb, 699. ». Owen, 1388. V. Plympton, 123. Atkinson «. Brooks, 827, 839, 830. ». Hawden, 1411. V. Mank, 161, 514. Atlantic B'k v. Merchants' B'k, 1607, 1610. National B'k v. Douglas, 1311. V. Franklin, 831. &c., M. Ins. Co. V. Boyes, 833. Atlas B'k 4). Doyle, 818, 833. Attenborough v. McKenzie, 480. Att'y Gen. ». Life & Fire Ins. Co., 383. Attwood V. Crowdie, 184. ■V. Hazledon, 996. V. Munnings, 376, 880, 390, 399, 487. V. Rattenbury, 1183. Atwood v. B'k of Chillicothe, 1683. Aubert v. Walsh, 1648. And ». Magruder, 1316. Aude V. Dixon, 854. Augusta B'k v. Augusta, 1495, 1533. Auriol -0. Thomas. 1438. Aurora City c. West, 807, 1500, 1513, 1533, 1557. Austell ». Rice, 196. Austin V. Bunyard, 1578. V. Custis, 1339. V. Imus, 930. Austin V. Rodman, 1076. 1). Vandermark, 365. v. Whitlock, 33. ■ Averett's Adm. o. Booker, 49, 50, 104,, 161, 163. Ayer v. Hutchings, 1333. Avery v. Stewart, 630, 637. Aymar v. Beers, 454, 478, 1135. 11. Sheldon, 899, 908, 909, 910, 919. Ayrault v. McQueen, 837. V. Pacific B'k, 341, 343. Ayres v. Milroy, 855. Ayrey v. Fearnsides, 60. Babcock v. Beman, 303, 415, 855. V. Loring, 303. V. Stone, 354. Bacchus V. Richmond, 1206. Bachousei). Selden, 921. Bachellor «. Priest, 120, 454, 464, 573, 573, 576, 987, 1301, 1233, 1230, 1399. Backhouse v. Harrison, 773. Backman v. Charleston, 1550, 1555. Backus V. Danforth, 620, 743. v. Shepherd, 1096, 1104. V. Spaulding, 187. Bacon v. Fitch, 99. V. Holloway, 187. V. Miss. Ins. Co., 384. V. Searles, 1237. Badnall i). Samuel, 1318. Baer v. Leppert, 1109, 1149. Bailey v. Bidwell, 166, 167, 808, 815. V. Bodenham, 1590, 1599. !). Dozier, 936, 940. V. Edwards, 1334, 1337. 1). Heald, 898, 930. V. Porter, 636. V. Rawley, 393. 1). Smith, 758a, 779. V. Smock, 108. V. Taber, 63, 85, V. Taylor, 1418, 1420, 1431. Bain i;. Whitehaven, &c. R. R. Co., 887. V. Wilson, 32. Bainbridge v. Wilcocks, 896. Baine d. Williams, 1253. Baird v. Blagrove, 33. V. Cochran, 366, 488. Baker ». Arnold, 745. V. Baker, 268. 11. Birch, 1083, 1148. t!. Chambliss, 406. V. Collins, 176. V. Denning, 688. V. Flower, 1305. ». JIarden, 136. e. Martin, 1336. The references} TABLE OF CASES. [are to the sections. Baker v. Morriss, 1033. 'V. Robinson, 713. V. Stackpole, 1353. V. "Walker, 837, 1339. V. Williamson, 1646. Balcetti «. Serani, 1350. Balcombe i). Northrup, 443. Baldwin v. B'k of La., 341, 343. J). B'k of Newburg, 1188. V. Farusworth, 638. ■V. Hall, 875, 1382. V. Richardson, 1047, 1130. «. Van Deusen, 734. Balfour v. Sea, Fire, &c. Ins. Co., 185. Ball V. Allen, 96, 1584. V. Greaud, 1095. V. Waddell, 1613. Ballard v. Burnside, 119. ». Fuller, 1639. Ballingalls ii. Gloster, 104, 671, 919, 1313. Ballinger v. Edwards, 764. Ballon 11. Talbot, 306, 307. Ballston Spa Bank v. Marine Bank, 393. Balme v. Wambaugh, 336. Baltzer ». Kansas P. R. R. Co., 643. Banbury ». Lissett, 509. Bancroft v. Hale, 1010, 1033. Bane «. Gridley, 1458a. Bange v. Flint, 835. Bangher ». Nelson, 1565. Bangor B'k r. Hook, 1439, 1455. Bangs 1). Mosher, 1339. Banki). Chillicotbe, 1529, 1530. V. Flanders, 688. J). Howard, 1673. V. Lanier, 1709. V. Pittell, 1606. V. Slaughter, 1007. V. Supervisors, 87. V. Whitehead, 803. Bank Commissioners v. Lafayette B'k, 1683. Bank of Albion v. Smith, 719. Alexandria -o. Swann, 983, 1036, 1039. Bengal v. Fagan, 384, 1634. V. McLeod, 284. Bennington «. Raymond, 454. British N. A. «. Hooper, 410. Cape Fear v. Seawell, 985. Charleston v. Chambers, 1193. Charlotte «. Hart, 1689. Chenango v. Hide, 793, 1190. 1). Root, 999. Chillicothe v. Dodge, 1699. Columbia r. Lawrence, 1015, 1016, 1018, 1033, 1033, 1058. Bank of Columbia v. Magrador, 632, 1033. V. Patterson's Adm., 388. Commerce I'. Barrett, 797,1394. 1). Bogy, 30, 21. V. Selden, 360. V. Union B'k, 533, 540, 1361, 1363, 1384, 1654,1659, 1661. Commonwealth v. Cun-y, 86, 142,490,854. e. Letcher, 1366. i). Mudgett, 637, 964. Cumberland v. Maberry, 69. Decatur v. Hodges, 940. England «. Newman, 588, 739, 1364. Gallipolis v. Trimble, 890. Genesee v. Patchin B'k, 298, 385, 386, 417, 1189, 1398. Geneva 1). Howlett, 1016, 1032, 1035. Georgia v. Lewin, 868, 923. Hamburg v. Johnson, 394. Ireland v. Archer, 556. «. Beresford, 736, 790. Kentucky v. Garey, 581, 583. «. Pursley, 945, 946. V. Thornberry, 1683. V. Wister, 1665. Limestone t. Penick, 86, 142. Louisiana ■». City of New Or- leans, 1505. ■B. Mansaker, 1017. ». Tournillon, 1038. Louisville v. Ellery, 491. Manchester v. Glasen, 687, 947, 958, 1034. Marietta «. Pindall, 666, 667. Metropolis v. Jones, 1317. V. New Bug. B'k, 183, 337, 838, 450. Michigan ». Ely, 558, 561. Middlebury v. Bingham, 1190. Missouri r. Hall, 1317. V. Phillips, 854. r. Vaughn, 991. V. Wright, 1454. Mobile V. Brown, 927. V. Biunn, 1570, 1651. V. Hudgins, 331, 343. f. Meagher, 1694. Montgomery r. Walker, 1335. Newbury i\ Rand, 1190. Niagara i\ McCraken, 1685. Thenfermcee] TABLE OF CASES. {aretotheseeUona. XXI Bank of Niagara v. Roosevelt, 1691. N. y. V. B'k of Ohio,1188,1417. V. Vanderhorst, 824. N. A. V. Barriere, 611. V. Meredith, 354, 1351. N. 0. •». B'k of Cape Fear, 647. Orange Co. i>. Colby, 908. Orleans v. Merrill, 1699, 1703. ». Smith, 344. Peru v. Parnaworth, 1703. Pittsburg V. Neal, 143, 483, 775, 814, 1503. Port Gibson «. Baagh, 370. Republic «. Baxter, 1608. V. Carrington, 833. V. Millard, 1636, 1638. Rochester v. Bowen, 365. ®. Gould, 779. 41. Gray,909, 948,961. ». Mintent, 304. J). Monteath, 363. Rome ». Village of Rome, 1500, 1537, 1550, 1553. Rutland v. Buck, 1190. V. Woodroof, 501. Salina v. Babcook, 837. Sandusky b. Scoville, 184. Scotland s. Hamilton, 477. St, Albans !). Gilliland,184,369. St. Louis V. Rice, 553. St. Mary's v. St. John, 1683. S. C. B. Flagg, 657. B. Humphreys, 371. a. M'Willie, 391. V. Myers, 1130, 1330. State V. Muskingum Branch B'k, 687. Syracuse v. Hollister, 606, 656. Tennessee v. Barksdale, 1767. V. Smith, 1154. Troy v. Topping, 363, 370. U. S. V. Bierne, 375, 703, 999. V. B'k of Georgia, 334, 533,1235,1360,16.55, 1656. 1). Carneal, 656, 985, 1032, 1028. K. Corcoran, 1003, 1019. V. Dandridge, 388. V. Daniel, 1360. !'. Davis, 391, 719, 1217. 0. Donally, 883, 885, 903. «. Dunn, 395, 719, 1317. r. Goddard,331,987, 993. c Hatch, 1019, 1305, 1307, 1330, 1337. V. Lane, 1024. t\ Leathers, 926, 1149. 1). Lyman, 1159, 1165, 1189. Bank of U. S. v. Norwood, 1015. ». Russell, 1373. -0. Sill, 1482, 1695. ». Smith, 644, 962. 1). U. S. 576, 898. 920, 1230, 1439, 1446, 1458, 1479. Utica V. Bender, 1C33, 1058, 1115, 1131, 1155. ' V. Davidson, 1033. V. Hillard, 1317. V. Ives, 1316, 1338. V. M'Kinster, 334, 346. V. Phillip, 1033. Seaford v. Conneway, 1085. ». Smeds, 334. V. Smith, 455, 573, 576,. 600, 656, 991, 1330. ». Wager, 614. Va. «. Ward, 1479, 1695, 1696. Vergennest). Cameron, 365, 369, 654, 953, 965, 1336. Washington v. Triplett, 334, 339, 340, 345, 349, 354, 490, 589, 614, 634, 908, 931, 932. Banks v. Marshall, 1243, 1244. Barbaroux v. Waters, 658, 963, 1085. Barber v. Backhouse, 201, 756. V. Gingell, 296, 299, 353, 1353. V. Mech's Ins. Co., 382. Barbour v. Bayen, 617. Barclay, ex parte, 990, 1366. 1], Bailey, 603, 603. ». Weever, 1093, 1105. Baring v. Clark, 536, 537. V. Reeder, 1217. Barkalow ». Johnson, 1149, 1152, 1163. Barker «. Barker, 190, 1107, 1134. V. Clarke, 1146. V. Hall, 1014. V. Mech's Ins. Co., 386, 405, 406. V. Prentiss, 199. V. Sterne, 65, 870. V. Valentine, 724, 725. Barley ■». Freeman, 1767. Barlow v. Bishop, 242, 681, 1331. 0. Congregational Soc, 398, 405, 407. V. Gregory, 639. «. Scott, 725. Barnaby ti. Barnaby, 234. Barnard «. Campbell, 1737, 1750. V. Gushing, 151, 154, 159. V. Guslin, 719. Barnes ». Gorman, 60. 11. Hedlev, 207. V. Ontario B'k, 383, 390, 391, 393 c. Reynolds, 1000, 1001. V. Town of Lacon, 1551. XXll The. refereticen] TABLE OF CASES. [aretotheaecHons. Barnes «. Vaughu, 654. Barnet «. Smith, 497, 1605, 1606, 1023. Barnett «. Cecil, 1343. V. Liolitenstein, 248. ■D. Ofterman, 170. Barney v. Earl, 832. 11. Newcomb, 896, 897, 1188, 1756. Barnwell d. Gorman, 60. V. Mitchell, 1030. Barr v. Boyer, 1311. Barrett ®. Allen, 627. i>. Barrett, 883. V. Charleston B'k, 1133. 1). County B'k, 1500. V. County Court, 1500, 1545, 1548. 1). Evan8, 1015. V. Funday, 94. V. Goddard, 1279. V. Bussell, 683. «. Skinner, 94. Barrick v. Austin, 163, 393, 728. Barring ». Clark, 526, 1 337. Barringtou v. Bank, 388. Barron «. How, 1267. Barrow v. Coles, 1745. 11. Pike, 173. Barry ii. Clark, 537. 11. Merchants' Ex. Co., 883, 388. 11. Morse, 719, 1093. Co. V. MoCluthlin, 1185. Barstow ii. Hiriart, 985. Bartscli v. Atwater, 874. Bartlett v. Benson, 734. V. Isbell, 349, 992. V. Robinson, 1033. V. Same, 63. 11. Tucker, 141, 304, 307. Barto V. Schenk, 715. Barton ii. Baker, 1131, 1137, 1173. 11. Bennett, 1173. V. Trent, 731, 737. 11. Wilkins, 80. Co. V. Walker, 1500, 1564. Bartrum v. Caddy, 783. Bascom v. Young, 368. Baskerville v. Harriss, 1149. Bass V. Clive, 535. V. Columbus, 1560. V. O'Brien, 303, 411. Bassett ii. Avery, 736, 808. v. Haines, 497. Bateman v. Joseph, 460, 1114, 1130. V. Mid Wales R. R., 499. Bates ». Butler, 663. 11. Kemp, 735. !). Kempton, 1181. n. Rosekrans, 1366. V. Todd, 1729. Bath Co. V. Amy, 1523. Bathe v. Taylor, 1375, 1377, 1401. Bathford v. Shaw, 1786, 1788. Batly V. CarswcU, 391. Battle 11. Weems, 736. Baugh V. Ramsey, 81. Baumgarduer v. Reeves, 1118. Baxendale v. Bennett, 842. Baxter r. Duren, 731, 735. V. Earl of Portsmouth, 212. V. Ellis, 814. t'. Graves, 1084. t'. Little, 724,725, 1233, 1437. r. Stewart, 60. Bay V. Coddington, 826. r. Freazer, 73. Bayard v. Shunk, 787, 1269, 1673, 1077. 1078. Bayley v. Chubb, 1027. r. Greenleaf, 1381. ?'. Faber, 197, 806. Beale r. Parrish, 987, 1058. Beall V. Leverett, 785. Beats V. Peck, 979, 973, 999, 1000. 11. See, 210, 085. Beaman's Adra. r. Russell, 1431. Bean ®. Arnold, 1099. 11. Briggs, 891, 1703. 11. Brown, 1351. 11. Keen, 1478. Beard ii. Dedolph, 741, 745, i>. Root, 1338, 1329, 11. Webb, 350. 11. White, 81. Beardslee v. Hortou, 797. Beardsley r. Baldwin, 41. 11. Hill, 80. V. Warner, 1304, 1305, 1339. Beaiman v. Board Police, 422. Beaty v. Grim, 1763. Beauchamp i\ Cash, 998. Beaumont v. Reeve, 195. Beaver Co. v. Armstrong, 1489, 1513. Beck V. Robley, 1239, 1340, 1341. V. Thompson, 616. Beckerdike ii. Bollman, 1074. Beckwith ii. Corall, 773, 1463, 1463. I'. Farnum, 738. 11. Smith, 1038. Becnel v. Tournillon, 1034. Bedford Com. Ins. Co. «. Covell, 805. 11. Deakin, 1395, 1396, 1338. 11. Hickman, 1034. Beebe v. Brooks, 611, 996. 11. Button, 122. Beeching r. Growar, 648, 1679, Beeker v. Saunders, 1788. Beele v. Bidgood, 79, Beeler v. Young, 22G, Beeman i\ Duck, 539, 1351, 1354, 1365, 1366. The nferencei\ TABLE OF CASES. \aretotlieMcUom. xxiii Beers u. Phoenix Glass Co., 382. Beeson v. Lipman, 1198. Begbie v. Levi, 69. Beirne v, Dunlap, 55. Belcher «. Smith, 1783. Belden «. Lamb, 751, 1058. Belderback «. Burlingame, 101. Belknap «. Nat. B'k of N. A. 1317, 1660. Bell ». Alexander, 1587, 1595, 1638. V. Bruen, 1755. e. Buckley, 1369. V. Cagerty, 731. v. Dagg, 672, 731, 739. ■0. Hagerstown B'k, 1012, 1023. V. Hall's Exrs. 1060. ■». Lord Ingestre, 721. V. Morrison, 374. «. Moas, 1737. «. Norwood, 1206. '0. State B'k, 1015. ». Young, 1471. Bellamy «. Majoribanks, 1571, 1585a, 1636. Bellasis v. Hester, 493, 624, 626. Belle v. Bidgood, 79. v. Bruen, 879. 3ellemire». B'kU. S., 341, 343. Bellow's Falls B'k v. Rutland Co., 1707. v. Lovell, 1311. Belmont Branch B'k v. Hoge, 769, 775, 814. Beloit ». Morgan, 1560. Belotte ». "Wynne, 374. Beltzhoover v. Blackstock, 775,779,1463. Bemis v. McKenzie, 996. Bend ». Weitze, 790. Benedict v. Caffee, 1135, 1172. ■0. Cowden, 149, 153, 153, 1397, 1407. ». Miner, 319, 1377. ». Smith, 331. Benham ». Bishop, 231, 334. Benjamin «. Arnold, 1338. v. McConnell, 1290. Benman v. Millison, 829. Bennell«. Wilder, 1251. Benners v. Clemens, 916. Bennett ». Farrell, 137. v. Young, 966. Benoin v. Paquin, 798. Benson v. Carmel, 432. ■B. Drake, 70. 11. Mayo, 1523. Benthall «. Judkins, 715, 1757. Bentnick «. Dorrien, 549. Benton v. Gibson, 611. v. Martin, 1173. 11. Marvin, 1101. n. Mattin, 68, 81, 1173. Berdsell d. Russell, 1499a. Berge?). Abbott, 1118, 1119. Berkeley v. Cannon, 313. ®. Watling, 1737. Berkshire B'k «. Jones, 636, 657, 1090. Berliner v. Town of Waterloo, 1535. Bernard v. Barry, 891. Bernheimer ». Marshall, 1361. Berridge v. Fitzgerald, 1016. Berrien ii. Wright, 933. Berry v. Bridges, 1376. v. Griffin, 1367, 1268, «. Robinson, 611, 996. «. South B'k, 1060. Berthume v. McCrary, 181. Bertrand n. Barkman, 184, 837. Besant n. Cross, 517. Besshears v. Rowe, 508. Best J). Hoppie, 713. n. Nokomis Nat. B'k, 1198. Betts 11. Kimpton, 356. Bevan «. Eldridge, 1213. Beverley's Case, 309. Bibb v. "Hitchcock, 196. 11. Peyton, 1105. Bickerdike ». Bollman, 1074, 1170. Bickford «. First Nat. B'k, 1590, 1636. ». Gibbs, 1759, 1788. Bioknall v. Waterman, 738. Biery e. Haines, 1391. Bigelow V. Colton, 707, 715. «. Grannis, 333. 0. Revnolds, 1755. «. Stephen, 1373, 1411. Bigler v. Waller, 1348. Bignold, ex parte., 1109. Bilbie «. Lumley, 1148. Billgerry v. Branch, 317, 318, 069, 678, 1060, 1063, 1070, 1567, 1571. Billing 11. Devaux, 35, 491, 498, 499, 503. Billings D. Billings, 80. ». Collins, 781. Bingham ». Noyes, 347. t>. Reddy, 1373. ». Stanley, 177. Binney ii. Plumley, 63, 65, 1187. Biossat v. Sullivan, 170. Birchard ». Bartlett, 705. Birckhead n. Brown, 1797. Bircleback «. Wilkins, 163. Bird n. Brown, 318. B. Daggett, 386. V. La. State B'k, 337. 11. Le Blanc, 1091, 1095. Birdsall v. Russell, 775. Bisbing n. Graham, 1473. Bishops. Dexter, 611, 996. n. Hayward, 1203. V. Rowe, 548, 1366, 1278. «. Yeazle, 1304. Xxiv The references] TABLE OF CASES. [are to (he sections. Bisley v. Brown, 1298. Bissell V. City of Kankakee, 1544, 1550, 15556. V. First Nat. Bank, 393. V, Gowdy, 736. V. Jeffersonville, 317, 389, 1537, 1540, 1564. V. Lewis, 561, 867, 897. Bissinger v. Guiteman, 81. Bizzell V. Stone, 1433. Black V. Coleman, 151. V. Peele, 543. V. Ward, 56, 58. i). Zacharie, 1273. Blackbourne, ex parte, 1263, 1364. Blackenhagen v. Blundell, 103. Blackie v. Pidding, 1464, 1483. Blackman v. Doren, 1075, 1076. V. Green, 663. Blackmore v. Wood, 80. Black River Sav. B'k v. Edwards, 164. Blackstone B'k d. Hill, 1351, 1319. Blackwell v. Denie, 133. V. Hamilton, 33, 34. Blade ». Noland, 1483. Blain & Hoge «. Wilson, 1064, 1065. Blaine v. Bourne, 698. Blair v. B'k of Tenn. 643, 1303, 1398. Blake v. Coleman, 151, 1396. V. McMillen, 594. Blakely v. Grant, 1017, 1783. Blakemore «. Wood, 80. Blakey d. Johnson, 1373, 1405. 11. Mutual B'k, 1108. Blanc 1). Mutual Nat. B'k, 1099. Blancliard v. Kaull, 405. 1). Stevens, 837, 830. V. Wood, 1099. Bland v. O'Hagen, 148. Blanding d. Burr, 1556. Blankenship ». Rogers, 1080,1439, 1595. Blatchford v. Milliken, 716. Bleaden ». Charles, 1468. Blessard v. Hurst, 1154, 1158. Bletlien i-. Loveriug, 670. Bliss V. Covington, 1473. V. Houghton, 890. Blodgett V. Durgin, 879, 880. V. Jackson, 139. Blood V. Maveuse, 396. V. Northrup, 44, 45. Bloom !). Helm, 365. Blossom V. Dadd, 1711. Blount V. Bestland, 357. V. Windley, 1689. Blow V. Maynard, 1343. Blum V. Bidwell, 1149. Boaler v. Mayer, 1333. Boalt 1). Brown, 1385. Board of Supervisors v. Hall, 1188. Boardman ». Paige, 1394. 1). Smith, 1433. Boatman's Sav. Ins. Co. v. B'k of Mo., 1686. V. Mead, 365. Bobe V. Stickney, 1351, 1253. Bobs !). Hansel, 231. Bock V. Laum, 751. Boddington v. Schlencher, 332, 1590. Bodley v. Higgins, 67. Boehm v. Garcias, 508. V. Sterling, 1567, 1595, 1634. Boeka v. Nuella, 741. Bogartt). M'Clung, 1150, 1164. Bogarth v. Breedlove, 1386. Bogert V. Hertell, 366, 368. Bogy?). Keil, 1083, 1173. Boit V. Corr, 649. V. Whitehead, 805. Bolitho, ex parte, 364. Bolton V. Dugdale, 58. ». Horrod, 470. Bonbonus, ex parte, 365, 366, 565, 567. Bond V. Bragg, 969. 1). Farnham, 1138, 1137, 1138, 1143. V. Fitzpatrick, 1437. «. Storris, 1329. V. Warden, 1593. «. Whitfield, 1472. Bondurant fl. Everett, 1015. Bonedon ®. Page, 898. Boneton v. Welsh, 982, 983. Bonman v. Van Kruen, 190. Bonner v. City of New Orleans, 1499J. r. Nelson, 854. Booker c. City of Robbin, Bool!). Mix, 229. Boomer v. Koon, 1375. Boon r. JIurphy, 1281. Booth r. Grove", 387. V. Powers, 1395,1410, 1411, 1412. V. Quin, 375. r. Smith, 1267, 137G. r. Storriss, 079. ('. Wallace, 86. Borden v. Clark, 700, 797. Borneman v. Sidlinger, 34. Borough V. Perkins, 936. V. White, 608. Borradaile v. Lowe, 1091, 1163. Borup -('. Mininger, 339, 347. Bosanquet ®. Dudman, 183. Boss ». Hewitt, 734, 787. Bossanger ». Ross, 751. Boston B'k v. Hodges, 658, 1313. Bostwick V. Dodge, 833. Bottomley ti. Brooke, 1431. 13. Fisher, 402. Bottomly i}. Goldsmith, 198, 808. Thirefeir6ncu\ TABLE OF CASES. Iw^tothi. ucUons. XXV Bouchell D. Clury, 224, 225. Boultbee ». Stubbs, 1322. Boulton ». Welsh, 983. Boulware v. Newton, 170, 1534. Bourne u. Ward, 162, 163. Bouts ». Ellis, 26. Bowen «. Bradley, 868. B. Byrne, 122. B. McCann, 174. V. Newell, 632, 634, 908, 1558, 1573, 1576. ®. Stoddard, 294, 1450. Bower ». Hastings, 726. t>. Hoffman, 1701. Bowerbank v. Monteiro, 79, 517. Bowers a. Hurd, 179. ». Jewell, 1401, 1408. ». Still, 1301. Bowes «. Howe, 1172. Bowie V. Duvall, 576, 1197, 1229. Bowker v. Childs, 1289. Bowles V. Elmore, 1293. «. Lambert, 100. Bowling V. Arthur, 343. V. Harrison, 1005, 1007. Bowman v. McChesney, 88, 89, 599. ». Nichol, 1401. ». Van Kuren, 834, 835, 831. ». Wood, 1181, 1192. Bowyer v. Bampton, 673. Boyce v. Edwards, 551, 559, 560, 561, 596, 1799. ». Geyer, 799. ■0. Tabb, 169, 172, 173. Boyd V. Brotherson, 14i 4. t>. Cleveland, 1093. ». Corbitt, 1193. -0. Emerson, 1621. v. Hitchcock, 1265, 1267. V. McCann, 174, 803. D. Mclvor, 815. V. Orton, 999. V. Parker, 834a. V. Plumb, 365. V. Vanderkemp, 803. Boyd's Adm's v. City Sav. B'k, 591, 973, 1000, 1005, 1011. Boydell w. Harkness, 519, 642. Boyle V. Skinner, 363. Boynton v. Pierce, 713. Bozeman «. Rushing, 196. Brabstone «. Gibson, 895. Bracken ti. GrifEen, 1534. Brackett ». Montfort, 1392. Bracton «. Willing, 533. Bradford ». Corey, 708, 1099. V. Fox, 1617, 1623. Brad laugh b. De Rin, 867. Bradlee ». Boston Glass Co., 298, 300, 401. Bradley ». Anderson, 81. •0. Ballard, 433. ■0. Curry, 1785. «. Davis, 979, 1003, 1019. i>. Harrington, 1574. V. Hunt, 24, 1672. V. Sill, 54. «. Mann, 1373. V. Marshall, 726. B. Pratt, 226. V. Root, 23. Bradshaw «. Hedge, 962. Brady ». Chandler, 86. " ». The Mayor, 318. Bragg ». Greenleaf, 1197. Brailsford v. Williams, 988, 990, 992,, 1054. Brainard ». Cappella, 186. V. N. Y. & H. R. R. Co., 1489, 1496. ». Reavis, 724. Braithwait «. Gardner, 535. Braman ». Hawk, 1317. ». Hess, 760, 760. Bramhall v. Van Campen, 69. Branch B'k ». Gaffrey, 996. ®. James, 1338. «. Knox, 331. V. Pierce, 1030. V. Tillman, 1482, 1484. State B'k ». McLeran, 593. Brandon ». Scott, 354. Brandt D. Bowlby, 1734. V. Mickle, 1135. Brannin «. Henderson, 513. Bray v. Hawden, 1043, 1044. ». Manson, 1305. Braynard «. Fisher, 1437. ». Marshall, 875, 881. Breed?). Cook, 1363. v. Hillhouse, 1786. Breitung w. Lindauer, 1290. Brengle v. Bushey, 1 328. Brent v. Ervin, 1478, 1481. Brent's Ex'rs «. Bank of Metropolis,, 639. Bresenthal ». Williams, 85. Brett V. Marston, 1780. Brewer ». Brewer, 36. Brewster c. Arnold, 983. V. Doane, 1057. i\ Hobart, 377. «. McOardel, 84, 630. t). Silence, 1767, 1779. V. Syracuse, 1556. ». Wakefield, liSSff. V. Williams, 49. Bricket ». Spalding, 649. Bridge v. Batchelder, 735, 736, 1369. Bridgeford ». Masonville Co., 1478. XXVI Tlue references] TxVBLE OF CASES. {are to the sections. Bridgeport v. Housatonic R. R. Co., 1533. Bridgeport B'k v. Dyer, 465. Bridgeport City B'lt v. Empire Stone Dressing Co., 386. Bridges v. Berry, 548, 971. 1). Hawksworth, 1674. Brieber ». Commercial Bank, 70. Briggs V. Boyd, 792, 1190. n. Briggs, 1429. V. Ewart, 851. v. Merrill, 781. Brigham v. Peters, 299. V. Potter, 204. Bright V. Judson, 896. Brighton Market B'k v. Philbrick, 1131. V. Webb, 1203. Brill «. Crick, 154. Brindley v. Barr, 1012. 1). Boyd, 713, 715. Brinkley v. Going, 576, 1237, 1229. Briscoe i). Bank of Kentucky, 1715. 1720, 1740. Bristol Knife Co. v. First Nat. B'k, 1618. «. Sprague, 371, 375. ». Warner, 45, 163. Bristow i>. Sequeville, 914. British Linen Go. «. Drummond, 884. Britton v. Bishop, 7:24, 735. ®. Dierker, 1376. Brock i). Thompson, 766. Brockway ». Allen, 403. V. Comparree, 704, 709. Bromage v. Lloyd, 64, 367. Brombridge ■». Osborne, 1338. Bromley v. Com. N. Bank, 1630. Bromwich v. Lloyd, 6. Bronaugh ». Scott, 1304. Bronson ». Alexandres, 713. V. Rodes, 1247. Brook V. Hook, 1353. Brooke v. Smith, 1431. Brookman v. Metcalf, 1496. Brooks V, Day, 965. 11. Elgin, 1377. V. Hargreaves, 41. ■D. Higby, 635. V. Martin, 859. V. Mitchell, 606, 608. V. Stewart, 1294. V. White, 1389. Broughton v. Puller, 1390, 1401. V. West, 1390. ■B. M. & S. Water Works, 377, 380. Brower v. Appleby, 395. V. Peabody, 1750. Brown, ex .parte, 680. D. Barry, 930. ■e. Brown, 24, 1181. Brown ». Butchers', &c. B'k, 74, 688. ». Butler, 715. t). Clark, 373. v. Curtis, 1763, 1779, 1786. V. Davies, 1500. 1). Davis, 726. ». Dickinson, 684, 701. V. De Winton, 130. V. Donnell, 290.. V. Dunbarr, 986. ■c. Fergusons, 9, 995, 1045, 1172. V. Finley, 194. Admrs. v. Garland, 1433. V. Gilman, 103, 1375, 1281. D. HaiTaden, 616, 617. ■c. Hull, 81. •e. Jackson, 698. 1). Jones, 1385. e. Langley, 81. V. Leavitt, 183a., 837. V. Leckie, 1636, 1627, 1628, 1786. 1). Lusk, 1569, 1595. ■e. Mafifey, 1077, 1083. V. M'Dermont, 588. v. Messiter, 1425, 1473. 1-. Montgomery, 1369. ». Mott, 181, 726, 766. V. Olmsted, 1360. V. Parker, 294, 303, 304. 1). Phillpot, 166. «. Powell, 1739. «. Reed, 1405, 1409. 11. SpofiFord, 70, 81, 719, 769, 812. 11. Todrell, 310. V. Turner, 593, 999. 11. Van Braum, 1438. V. Ward, 833. 11. Wilcox, 674. Browne v. Coite, 513. v. Wiley, 70. Brownell v. Bonney, 1047. 11. Winnie, 1388. Browning ii. Kinnier, 1117, 1130. Brownlee v. Arnold, 835. Bruce ». Bruce, 673. V. Lord, 412. V. Lytle, 1104, 1144, 1157. 11. Westcott, 1895. 11. Wright, 717, 722. Bruen ». Marquend, 1331. Brumah ii. Roberts, 358. Brummagin v. Tallant, 1703, 1707. Brummel ii. Enders, 145, 146, 175, 752. Brunsen v. Napier, 1135. Brush V. Reeves, 663. ■B. Scribner, 775, 833. Brutt !). Piocard, 1403. Bruyn v. Receiver, 1691. Bryan v. Berry, 376. The refereneesi TABLE OF CASES. lare to the sections. XXvii Bryan v. 'Wilcox, 1104. Bryant v. Christie, 194. V. Damaiiscotta Bank, 1685. ' V. Edson, 634, 908. V. Lord, 1093. V. Merchants' Bank, 1092, 1094. 11. Vix, 834. Bryden v. Taylor, 945. Buchanan v. Findley, 9, 790. 1). Kims, 1381. V. Marshall, 1096. Bucher ». Jarrett, 1483. Buck V. Kent, 1483. v. Merrick, 407. Buckalew v. Smith, 1816. Buckhouse v. Selden, 880. Bucklen v. Huff, 1373. Buckley, ex parts, 1613. V. Briggs, 383. V. Beardsley, 1764. ■». Jackson, 698. - Buckner «. Finley, 9. V. Jones, 775. V. Lee, 357, 363. ». Bay re, 18. Buffington u. Curtis, 1743. Buifum !). Chadwick, 415. Buhrman v. Bayles, 833. Bulger V. Roche, 884. Bulkley v. Butler, 143. Bull V. Read, 1557. 11. Sims, 439, 433. BuUard v. Bell, 1673, 1683. V. Thompson, 877, 933. ». Wilson, 1056. Buller «. Crips, 5, 6, 33. V. Heane, 1711. Bullet D. B'k of Pennsylvania, 1478, 1 695. BuUfin V. Clarke, 347. Bullock V. Loyd, 1305. Bumpass «. Taggart, 133, 136. V. Timms, 65. Bunn ». Grey, 196. Bunney «. Poyntz, 1279, 1280. Burbank ®. Beach, 951. V. Posey, 403. Burbridge v. Manners, 1036. 1087, 1333, 1335. Burch V. Hill, 591. «. Tebbutt, 1352. Burchell v. Slocock, 104. Burchfield v. Moore, 1378, 1379. Burden v. Southerlaud, 148. Burdick v. Green, 1360. Burge V. Dishman, 81. Burgess ». Chapin, 738. V. Dewey, 1317. V. Merrill, 338. V. Northern Bank of Kentucky, 1358. Burgess ». Vreeland, 983, 985, 1039, 1040, 1041. Burgh V. Legge, 1047, 1107. Burk 11. Gray, 1381. Burke v. Bishop, 34, 36, 1618a. V. McKay, 586, 936, 928,934, 991. Burkham «. Trowbridge, 983. Burmestert). Barron, 1033, 1029, 1030. e. Hogarth, 663. Burnett v. Cecil, 1343. Burnham v. Allen, 86. v. Webster, 1096, 1099. V. Wood, 738. Burr V. Smyth, 1222. Burrill v. Smith, 674, 675, 1113, 1113, 1116. Burrough v. Moss, 254, 686, 1430, 1436. Burroughs v. B'k of Charlotte, 1683. Burrows v. Hanegan, 1135, 1180. 11. Jemimo, 872. 11. Keays, 748. Burson ii. Huntington, 122, 838. Burt V. Horner, 1769. V. Walker, 113. Burton n. Brooks, 57. 1). Dees, 1197. 11. Payne, 1483, 1649. V. Slaughter, 364, 1333, 1342, Bush V. Baldry, 1 349. 11. Brown, 857. 11. Livingston, 760. V. Pickard, 833. Bushworth v. Moore, 963. Bussard v. Levering, 637, 1005, 1021, 1043, 1051. Butcher v. Carlisle, 55. ■0. Churchill, 1343. Butler V. Dubois, 444. «. Dunham, 1523, 1524, 1536. ». Duval, 992, 995. V. Gambs, 1311. 11. Horwitz, 1247. 11. Kimball, 1210. «. Paine, 56. V. Prentiss, 567. V. Stocking, 367. ■e. Webb, 1057. Butts V. Dean, 1367. Buxton V. Jones, 590. Byars v. Doore, 306. Byers ». Harris, 314. Bynum v. Apperson, 1060, 1070. «. Rogers, 764. Byram ii. Hunter, 1162. Byrd v. Holloway, 263. Byrom «. Thompson, 1395. Cabot B'k v. Morton, 731, 1358. J). Russell, 1024. V. Warner, 1003, 1005. XXviii Therefmnces-] TABLE OF CASES. {are to the seotionn. Catly ». Shepard, 700, 704. Cahal J). Frierson, 704. Cahoun i). Moore, 265. Calder v. Provan, 187. Caldwell v. Ball, 17.S7. i). Cassaday, 643, 645, 168-5. V. Evans, 336, 1198. M. Lawrence, 1181. C'alfee ». Burgess, 170. Calhoun v. Albin, 737. V. Calhoun, 173. ?). Davis, 81. Callander v. Kirkpatrick, 1387. Callon V. Lawrence, 1387, 1241, 1343. Calvert r>. AVilliams, 307. Camden v. Doremus, 658, 661, 1769. 1}. M'Koy, 707, 710, 718, 1769. ». Mullen, 350. Camidge v. Allenby, 453, 732, 740, 1263, 1263, 1364, 1678, 1679. Cammer «. Harrison, 617, 1211. C^amp «. Bates, 1048. V. Knox, 1689. Campbell v. Baldwin, 1381. V. Butler, 718. ' ». French, 619. J). Hodgson, 81. D. Humphreys, 1229. V. Kenosha, 1533, 1535, 1560, 1561. ». Knapp, 1759. V. Miss, Union B'k, 1671. V. Nichols, 861, 868, 918. I). Pettengill, 513, 1077, 1083. 0. Robins, 719. V. Sloan, 207. i'. Tate, 1338. ('. Upsham, 80. V. Webster, 1158. v. Wilcox, 134, 135. Camp's Appeal, 34. Campton v. McNair, 1769. Can V. Read, 1615. Canal B'k v. B'k of Albany, 538, 538, 1235, 1361, 1862, 1303, 1364, 1366, 1872. Cannan v. Bryce, 200. V. Farmer, 243. Cannon -o. Gibbs, 1787. Canton, &c. Ass'n v. Weber, 1198. Cape Fear B'k v. Steinmeitz, 960. Caphart v. Dodd, 406. Capron d. Capron, 43. Card V. Miller, 1387, 1388. Cardell v. McNeil, 17G3. Carey v. Green, lfi94. ®. McDougald, 1703. Cariss '0. Tattersall, 1395, 1401. Carlin ». Kenealy, 48. Carlisle v. Chambers, 903. Carlisle v. Hill, 753. V. Wishart, 832. Carlon «i. Ireland, 1585a. Carlton v. Bailey, 304. «. Woods, 304. Carman v. Garrison, 1431. Carmicbael v. Bank of Penn., 454, 463, 1100. Carne v. Brigham, 382. Carnegie d. Morrison, 661, 897. earner ». Cameron, 369. Carpenter «. Parnsworth, 103. 1). Longan, 834a. V. McClure, 1 94. V. Murphee, 1390. V. Northborough Nat. Bank, 1369. •e. Oakes, 713. V. Reynolds, 1095. V. Snelling, 132. Carr v. Eastabroke, 1386. ■0. Howard, 1339. V. Le Fevre, 1496, 1509. V. Nat. Sec. Bank, 1606, 1636. V, Rowland, 713. Carrie J). Child, 112. Carroll v. Weld, 713. CarroUton B'k v. Tayleur, 550, 560. Carruth v. Walker, 664. Carruthers v. West, 686, 720. Carson ». Bank of Alabama, 1015. V. Bank of State, 1056. 7). Russell, 454, 481. Carstairs t\ Rolleston, 1335. Carter v. Bradley, 979, 980. ». Brown, 581. 1). Burley, 9, 927, 928, 915, 946, 1039, 1045, 1047, 1053, V. Flower, 465, 1047, 1083, 1084, 1113. V. Hamilton, 81. D. Sanders, 263, 263. V. Sprague, 693, 1147, V. Thomas, 262. 1). Union B'k, 9, 586, 657, 909, 926, 986, 1023, Cartwright v. Williams, 664, 1335. «. Wilmerding, 1747, 1750. Carver v. Hayes, 88. Carvick v. Vickeiy, 684. Carville v. Crane, 569. Cary,Ex'rs of Great orex », Gerrish, 1646. V. White, 1338. Casborne v. Button, 39. Casco Bank d, Keene, 1851. Case ». Burt, 492. 0. Hawkins, 1311. V. Morriss, 1387. 11. Spaulding, 720. Cash B. Kennion, 916, 1454. Thereferm6m\ TABLE OF CASES. Im-etotheaeetions. xxix Cash ». Taylor, 297. Cashman v. Haynes, 53. Cass 0. Dillon, l.i24. Cassebeer v. Kalbfleiscli, 751. Cassell «. Dows, 550, 560, 561. Castrique v. Battigieg, 717. ». Bernabo, 1 312. Cate V. Patterson, 1702, 1703, 1705. Cathcait v. Gribson, 1147. Catlin v. Gunter, 751. Caton 11. Lenox, 5. V. Shaw, 1785. Catron v. First Universalist Society. 380, 887. Catskill B'k v. Stall, 368, 488. Catton ». Simpson, 1387. Caulkins d. Whisler, 845, 846. Caunt V. Thompson, 972, 985, 1087, 1175. Cavazos v. Trevins, 713. Caverick v. Vickery, 701. Cawein «. Browinski, 1590. Caxton v. Lyon, 84. Cayuga Co. B'k ». Bennett, 1000. 11. Dill, 1106, 1107. v. Hunt. 464, 593, 602, 940, 951, 1038. V. Warden, 978,979,980, Cazet V. Field, 199. 11. Hicks, 1458'r. Cecil B'k v. Farmers' B'k, 336. V. Heald, 1653. Central B'k ii. Allen, 615, 1119, 1145. V. Davis, 694, 1109. V. Hammett, 753, 769, 781, 781a. Central Nat. B'k v. Charlotte, &c. K. B. 31. Central Sayings B'k v. Mead, 365. ».Richards,496,551. 11. Shines, 1785. Chaddock v. Van Ness, 710, 713, 717, 720, 721. Chadaey, v. McCreery, 415. Chadwick v. Allen, 102. 11. Eastman, 1414. Chalmers v. Lanion, 736, 803. V. McMurdo, 703, 704. Chamberlain v. Qorham, 163. V. Hewson, 343. v. McClurg, 1353. V. Townsend, 863. V. Walker, 354. V. White, 1389. Chambers Co. n. Clews, 1503. Chambers v. Davidson, 1279. v. George, 1345. V. Hill, 466, 472. Champion v. Gordon, 1569, 1573, 1576. Champney ». Blanchard, 24. Chandler v. Glover, 333. Chandler v. Johnson, 196, 304. V. Mason, 1113. «. Parks, 238. 11. Westfall, 713. Chanoine v. Fowler, 946, 988, 993. Chapin v. Vt. & Mass. R. R., 1500. Chapman n. Annett, 1158. ®. Black, 183, 206, 760. V. Commonwealth, 1250, 1251. 11. Cotterell, 870. «. Durant, 1260. V. Foster, 249. V. Keene, 987, 990. 11. Lipscombe, 1115. ®. Robertson, 879,894,922,933. ®. Rose, 672, 848, 850, 851. 11. White, 1636. Chappell 11. Spencer, 1388. Chappie «. Durston, 1214. Chard ii. Fox, 985. Charles v. Marsden, 724, 726, 786, 790. Charnley v. Dallas, 1703, 1705. Chartres v. Cairnes, 895. Chase v. Redding, 24, 36. v. Taylor, 959. Chaters v. Bell, 939, 940, 1196. Chatfield v. Paxton, 1148. Chaudron v. Hunt, 1478. Chautauqua County B'k v. Davis, 576. Cheek v. Roper, 456. Chemung Canal B'k ii. Supervisors, 433, 427. Chenowith v. Chamberlain, 9, 365, 581, 582, 583. Cherd v. Ford, 56. Cheshire ii. Barrett, 230, 234. 11. Taylor, 1149. Chesmer v. Noyes, 968. Chester ». Door, 727, 786. &c. R. R. Co. 11. Lickiss, 03. Chew n. Bank of Baltimore, 359. Chewing i>. Singleton, 1478. Chicago Marine Ins. Co. v. Stanford, 1637. v. People, 1514. R. R. Co. 11. West, 128. Chick V. Pittsburg, 1039, 1041. Chicopee B'k i;. Chapin, 67, 181, 834, 827, 832. V. Eager, 1013. V. Philadelphia B'k, 67, 656, 657. Childers v. Boulnois, 36. Childs v. Laffen, 653. V. Monins, 262, 263. V. Wyman, 700, 713. Chilton ('. Whippin, 1205. Chipman v. Martin, 1274. V. Tucker, 854. Chisholra's Case, 1346. XXX Th6refermce>,-\ TABLE OF CASES. \_ar6tothe seetlmw. Chism t. Toomer, 1418, 1420. Cholmely v. Darley, 1.53. Chouteau v. Merry, 340, 346. D. Webster, 1025, 1037. Christian r. Miller, 1439. v. Morris, 363. Christie «. Pearl, 491. Church ®. Barlow, 993. «. Clark, 601. Churchill v. Gardiner, 63, 65. Chute r, Pattee, 1317. Cicotte II. Caynier 834. Cincinnati R. R. Co. v. Pontius, 1739. Citizens' Nat. B'k t. Hooper, 775. V. Richmond, 1414, 1415. City D. Alexandria, 1533. City B'k v. Cutter, 632, 629, 658, 1048, 1213. v. Farmers' B'k, 1680. «. Perkins, 393. City Nat. B'k v. Mahan, 1733. City of Atchinson v.- Butcher, 1496, 1500, 1533. Aurora v. West, 1532, 1550. Bridgeport ». Housatonic R. R. Co , 1523. Elizabeth », Force, 1499a, 1500, 1503. Galena d. Corwith, 1527. JefEersonville ». Patterson, 1507, 1513. Kenosha v. Lamson, 1496,1497, 1509, 1516,1528,1535,1564. Lexington ?). Butler, 1496,1497, 1506,1516,1537,1543,1550. Lynchburg s. Norvell, 1533, 1534. Muscatine v. Sterneman, 133. Pekin ». Reynolds, 1514. Williamsport v. Common- wealth, 430, 1531. Claflin V. Brjant, 604. 11. Farmers' B'k, 389, IGOT, 1609, 1611. Clagett V. Salmon, 1333. Clair v. Burr, 1173. Clanton v. Barnes, 899. Clapp V. County of Cedar, 1500, 1524. V. Day, 1189. t). Rice, 703, 707. Claremont B'k ». Wood, 1335. Claridge it. Dalton, 1074, 1076, 1077, 1307. Clark V. Adair, 33. V. Bank, 1586. ■V. Barnwell, 1739. 4). Benton Man. Co., 388. p. Blackstock, 1390. V. Boyd, G4, 267. Clark V. Caldwell, 214. ■B. Clark, 1612. «!. Conner, 884, t,. Devlin, 1303, 1305, 1331. D. Draper, 1279. t). Eldrige, 983. D. Farmers' Woolen Man. Co., 33, 383. t. Iowa City, 1489, 1516. B. Janesville, 1489, 1500, 1534. 41. Loomis, 751. «. Merriam, 713. V. Mundal, 1360. V. Nat. Metropolitan B'k, 1587, 1590. V. Peace, 177. ». Pigot, 686, 695. ». Polk County, 433, 437, 435. D. Recker, 300. V. Reed, 1481. V. Ricker, 196, 304. v. School District, 382. V. Sisson, 863. V. Thayer, 790, 798. V. Whitaker, 745. v. Young, 1260. Clarke v. Cock, 550. 11. Deaderich, 734. V. Des Moines, 420, 432, 437,428, 1520, 1550. D. Gordon, 505, 515. V. Hawkins, 1691. 11. Johnson, 837. v. Lazarus, 201 . ('. Martin, 5, 162. 11. Morey, 332. ». Percival, 50, 53. V. Quince, 1473, 1483. 4). Russell, 930. '('. Scott, 1250. 11. Sigourney, 64, 66, 267. ». Sharp, 1029, 1030. 11. Shea, 1469. v. State of Ohio, 1345. Clarke Nat. B'k v. B'k of Albion, 1607, 1610. Clason «. Bailey, 74. Clauser 4). Stone, 54. Claxton 11. Swift, 1284. Clay V. Cottrell, 359, 725, 1437. V. Crowe, 1484. ■0. Bdgerton, 1786. ■0. Oakley, 998. Clayton x>. Gosling, 89, 108, 1215. Clegg V. Cotton, 1074, 1082, 1170. 11. Lemesurier, 32. v. Levy, 914. Clemens v. Conrad, 123, 126. Clement ». Reppard, 174. Cleveland r. Worrell, 1484. Thertfm'cnoes} TABLE OF CASES. {are to the aecUons. XXxi Clewer b. Winn, 843. Cline V. Guthrie, 853. Clinton B'k v. Ayres, 1190. Clippinger v. Hepbaugh, 188. Clode V. Bayley, 993, 995. Clopper V. Union B'k, 1360, 1385. Clopton V. Elkin, 204. v. Spratt, 1311. Closson V. Steams, 74, 688. Cloud V. Whiting, 859, 800. Clough V. Davis, 69. Clouston V. Barbiere, 716. Clower a. Wynn, 146. Clowes V. Chaldecott, 1036. Clute V. Small, 1401, 1410, 1411, 1413. Cobb V. Titus, 766. Cocheco B'k v. Haskell, 393, 395. Cochituate B'k v. Colt, 1681. Cochran ». Nebeker, 1373, 1418. Cock ». Fellows, 99. Cocke ®. Dickens, 1187. Cockrill ■». Kirkpatrick, 56, 81. «. Loewenstine, 966. Cocks v. Borrodale, 1196. ». Mastermaii, 1371. Cockshott V. Bennett, 194. Coddington v. Bay, 837. V. Davis, 939, 1095. Codman v. Lubbuck, 1673. Coe 1). Wallace, 81. Coffee ». Planters' B'k, 678. Cofifman ». Campbell, 496, 505. ?). Wilson, 790. Coge V. Palmer, 766. Coggill V. American Ex. B'k, 538, 673, 1356, 1366. Coghlin r. May, 786. Cohen v. Hunt, 656, 600. Cohn ®. Dutton, 713. Colburn v. Averill, 1759. Colby B. Coop, 1353. Coldstone v. Tovey, 353. Cole V. Cushing, 694. V. Handley, 81. ». Hills, 398. V. Merchants' B'k, 1777. ». Pennell, 330, 338. 11. Sackett, 1260, 1366, 1375, 1299. V. Saxby, 333. Coleman ». Biedman, 1197. V. Carpenter, 1036, 1043. V. Ewing, 1307, 1309. ». First Nat. B'k, 1699, 1700. V. Sayer, 617, 636. ». Smith, 965. Coles v. Frecothick, 377. Colgin V. Henley, 1765. Coliger v. Francis, 758, 778. Colkelt V. Freeman, 1036. CoUett V. Haight, 1333. Collier v. Gray, 88. V. Mahan, 679. V. Nevill, 759, 764. Collins, ex parte, 1612. V. Blantern, 196. V. Bradbury, 51. ». Buckeye State Ins. Co., 305. V. Butler, lllS. V. Central B'k, 1683. i\ Gilbert, 738, 776, 813, 814,. 815. V. Johnson, 687. V. Makepeace, 1414. ». Westbury, 857. Collis V. Emett, 136, 138. Colombies v. Slim, 1199. Colson V. Arnot, 677, 1470. Colt V. Barnard, 996. 1). Ives, 1644. V. Miller, 1048. 11. Noble, 992. Coman ®. The State, 1317. Comb». Killridge, 1317. Commercial B'k v Barksdale, 581, 586. B. Benedict, 1465, 1478, 1695, 1696. 1]. Claiborne, 1190. 11. Clark, 1157, 1321. 11. French, 399, 1189. V. Grove, 1017. V. Hamer, 600, 656. V. Hughes, 1170, 1596. V. King, 1041. V. Nevpport Man. Co., 383, 383. 400. «. Norton, 377,283,390. n. Paton, 1403. V. Strong, 1016, 1054. v. Union B'k, 341, 344. 11. Vatnum, 984. ,«. Varum, 581, 582, 586., Commercial Mutual Life Ins. Co. v. Cleveland R. B., 1500, 1518. Commercial Nat. B'k ». First Nat. B'k, 775. V. lola, 1533. of Albany B.Clark,. 1159. of Clyde v. Marine- B'k, 339. Commissioners v. Ballis, 1503, 1539. V. Bolles, 1537. 11. Clark, 803, 813, 814, 815, 1500, 1503. of Craven Co. v. A. & N. R. B. Co., 935. of Flovd Co. V. Day, 438, 481. &c. V. January, 1537, 1544, 1547. XXxii Theref. Junction, &c. R. R., 31. Conkling v. Gandall, 1586. «. King, 1268. Conlin ti. Cantrell, 248. Conn ». Coburn, 225, 1314. ^. Thornton, 46. Connecticut Mutual Life Ins. Co. v. Cleveland R. R. Co., 1495, 1496, 1497, 1500, 1513. Connelly ®. McKean, 492, 1646, 1648. Conner !). Clark, 371. Connor v. Bellamont, 894. V. Martin, 242, 681. Connor d. Routh, 76, 1404. ConoUy ^. Goodwin, 947. Conover ». Earl, 668. Conro !). Port Henry Iron Co., 899, 409. Conroy e. Warren, 1081, 1586, 1587, 1588, 1596, 1652. Consequa «. Willings, 918. Consolidated Ass. «. Avegno, 1500. Conway v. Case, 1647. Cony t). Wheelock, 683. Cook V. Baldwin, 497. V. Barnes, 1274. «. Beech, 1363. D. Buck, 1277. V. Citizens' Mut. Ins. Co., 871. V. Clayworth, 214. ». Coxwell, 1375. «. Crawford, 11. !). Darling, 616, 617. V. Gray, 616. V. Helms, 814, 827. ®. Larkin, 803. v. Litchfield, 868, 899, 925, 976, 977, 979. •c. Martin, 646, 1084. v. Miltenberger, 550. «. Moft'at, 868. «. Saterlee, 60. ■D. Seeley, 1613. ». Shipman, 196. •B. Southwick, 718. V. Wolfendale, 509. Cooke v. Branch B'k, 358. •V. Darwin, 1483. ». Nathan, 1769. V. State Nat. B'k, 1600, 1607. Cookendorfer v. Preston, 632, 633. Coolbroth e. Purrington, 86. Cooley D. Rose, 1313. Coolidge ?J. Brigham, 731. «. Payson, 551, 560, 1799. V. Ruggles, 41. ■B. Wiggin, 708. Cooper I). Bailey, 668. v. Curtis, 385, 892. 13. Dedrick, 1777. ». Earl of Waldergrave, 896. 1). Meyer, 585, 588, 1365. «). Poston, 138, 130. v. Town of Thompson, 1490. Coore «. Callaway, 487. Coperthwaite v. ShefBeld, 50. Copp B. M'Dugall, 669, 1113. ». Sawyer, 179. Coppmann v. B'k of Kentucky, 1383. Coppock «. Bower, 300. Corbet «. B'k of Smyrna, 737, 13S3, 1675, 1676, 1677. Corbett «. State of Georgia, 41, 50. •0. Steinmetz, 47. The refereneefl TABLE OF CASES. lare to the eectimD. XXxiii Corbin v. Soutligate, 547. Corburn v. Webb, 143, 1375. Corby v. Weddle, 851. Corcoran v. Dale, 1419. V. Powers, 751. Corgan ®. Frew, 86, 688, 1580. Corielle v. Allen, 1317. €orn Exch. Ins. Co. ii. Babcock, 348, 1266. Comay v. DaCosta, 112, 141, 1128, 1141. •Cornell v. Hicbens, 834. 1). Moulton, 599. V. Nebeker, 1407. Comthwaite v. First N. B., 262. Oomu V. Blackboume, 321. Cornwall v. Gould, 1366. Cornwell ». Pumphrey, 56. Corp V. McComb, 1043. Corser v. Craig, 19, 451, 743. V. Paul, 393. Cory V. Scott, 1047, 1077, 1170, 1172. Coster V. Thomason, 593, 999. Cota V. Buck, 45. Cotes V. Davis, 342, 253, 680. Cotton V. Evans, 368. V. Simpson, 1389. V. Sterling, 803, 804. Cottrell V. Conklin, 713. Couch «. Meeker, 68, 855. V. Sherrill, 960, 1051. V. Waring, 1306, 1329. Coulter V. Richmond, 713. Commissioners v. Chandler, 1533. County Judge v. Shelby R. R. Co. 1556. of Beaver ®. Armstrong, 1491, 1509. of Calloway v. Foster, 1534. of Cass v. Johnson, 1535ffl. of Cass V. Jordan, 1685a. of Hardin v. McFarlan, 1555«t. of Henry v. Nicolay, 1524, 1537. of Ray v. Vansycle, 1545. of Randolph v. Post, 1523, 1548. of Scotland ®. Thomas, 1524. Course v. Shackleford, 611, 996. Courtney v. Doyle, 162, 713. Covington v. Comstock, 653. Cowden v. Elliott, 1428. Cowgill V. Long, 1561. Cowie «. Halsall, 1378, 1379. Cowles 11. Harts, 985. 0. McVickar, 750, 764, 765. Cowperthwaite ii. ShefBeld, 20, 31, 23, 636, 991, 1636. Cowton V. Wickersham, 535. Cox ». Coleman, 504. V. Barle, 1354. V. Fenwick, 1381. v. Smith, 1458fl(. V. Troy, 63, 490, 493. Vol. I.— C Coxe v. State B'k, 1672, 1689. Coxon V. Lyon, 86. Coye V. Palmer, 1703. Coyle V. Smith, 1590. Crabtree v. May, 337. Craft V. Fleming, 700. i>. Hendrick, 765. ». Isham, 1785. Crafts V. Beale, 1330. Craig V. Brown, 694. V. City of Vicksburg, 1500. «. Craig, 35. V. Dimock, 125, 126. V. Price, 617. V. Sibbett, 174. V. State of Missouri, 1715, 1718, 1719, 1730. 1). Twomey, 1191. Grain v. Coldwell, 1163. Crandel v. Vickery, 7586, 759. Cram v. Hendricks, 776. V. Sherburne, 1106, 1155. Cramer v. loder, 76. Cramlington v. Evans. 616, 1185, 1331. Crandall v. Schroeppel, 654, 1338. Crane v. McDonald, 1363. Cranson v. Goss, 65, 70. Craven v. Ryder, 1730. Cravens v. Gillilan, 399. Crawford v. Branch B'k, 898, 930, 983, 991, 1052, 1448. V. Millspaugh, 1395, 1316. V. Roberts, 1360. r. Royal B'k, 1680. County !). Wilson, 438, 433, 434. Crawshay ii. Collins, 370. Craythorn v. Swinburne, 1340. Creamer v. Perry, 1100, 1131,1140,1163. Cremer ». Higgenson,,1771. Crenshaw v. M'Kiernan, 616, 1309. Crescent B'k i). Hernandez, 187. Cribbs v. Adams, 581, 586, 617. Cripps V. Davis, 738, 783. Crisp V. Griffiths, 1370. Crocker v. Coldwell, 364. «. Gilbert, 1767. V. Gitchell, 719, 984, 993. Crockett «. Thomason, 1373. V. Trotter, 1266. Croft V. Bunster, 748, 834. Crofts V. Beale, 185. Croix «. Sibbett, 790. Cromer v. Piatt, 983, 983. Cromwell v. County of Sac, TSSa, 803, 1458a, 1506. V. Hynson,590,943,1017,1145. V. Tate's Ex'rs, 83. Cronise v. Kellogg, 790, 1335. Cronk «. Frith, 112. Cront V. DeWolf, 1353. XXXiv Tlie refermees] TAELE OF CASES. } to the seetion'i^ Crook D. Jadis, 773, 1503. Crocker v. Holmes, 44. Crooks t). Tully, 724, 990. Crookshank ». Rose, 206. Crosby v. Grant, 787. V. New London &c.K.B.Co.,1513. V. Roiib, 689, 690, 834. V. Wyatt, 1317, 1789. Croskey v. Skinner, 1195. Cross «. Wood, 1316. Crosse j>.Smith,972,998,1016,1038,1119. Crossen 4). Hutchins, 1172. Crossley v. Ham, 788. Crossman v. Puller, 158. Crosthwait v. Misener, 1200. V. Ross, 858. Croton V. Dolheim, 1083. Croughton v. Duval, 1339. Crout V. DeWolf, 859. Crow 1). Eichinger, 303. Crowe ». Clay, 1475, 1484. Crowell V. Hinson, 590, 943. V. Plant, 508, 517. Crowley v. Barry, 592, 1023. Croxen v. Worthen, 1153, 1158, 1163. Cruohers v. Wolf, 1149. Cruger v. Armstrong, 1073, 1567, 1571, 1586, 1595, 1630, 1653. Crum V: Corby, 8346. CrutcUey v. Clarence, 145, 1194. V. Mann, 870. Cryst D. Cryst, 265. Cullum V. Branch B'k, 837. Culver V. Ashley, 319. 1!. Leavy, 684, 704. Cumber v. Wane, 1266. Cumberland B'k «. Hall, 1387, 1418. Cuming v. Brown, 1749. !). French, 1167. Cummings v. Boyd, 827. V. Freeman, 36, 37. V. Thompson, 714, 715. Cumpston ii. MoNair, 1769. Cundy ». Marriott, 669, 674, 1113. Cunningham v. Smithson, 360, 363. V. Wardwell, 138, 482. Curlewis v. Corfield, 1160. Curran v. Arkansas, 1724. Curiie v. Donald, 856. V. Miser, 1633. Currier v. Hale, 81. i). Hodgdon, 747. r. Lockwood, 36, 39, 899. Curry v. B'k of Mobile, 694, 1043, 1218. V. Reynolds, 486, 1318. Curtin v. Patten, 336. Curtis «. Bemis, 1199. 1). Leavitt, 383, 833, 1565. V. Martin, 1105, 1110, 1165. V. Mohr, 824. Curtis 11. Rush, 1274. 1]. Smallraan, 1769. V. State B'k, 1013, 1049. Curtton V. Moore, 358. Cushing V. Gore, 1583, 1596. Cushman «. Dement, 713. i>. Haynes, 53. Cuthbert v. Bowie, 154, 156. V. Haley, 207. Cutler V. Welsh, 300. Cutter V. Roberts, 856. Cutts V. Perkins, 21, 23, 451, 491, 498. 1618a. Cuylas V. N. Y. E. & S. R. R., 1555. Cuyler v. Merrifield, 290. 1). Nellis, 1022. V. Stevens, 972. Dabney v. Campbell, 629. 1). Stager, 999. Da Costa v. Cole, 1344. «. Jones, 195. Daggett V. Whitting, 790. Daily v. Coker, 132, 125. Dair v. U. S., 856. Daist V. Gale, 318. Dakin v. Graves, 966. Dale V. Gear, 719, 721, 722. V. Moffit, 707, 717. D. Pope, 81. Dalryraple v. Hillenbrand, 673, 876. V. Whittingham, 422, 430. Daly V. Butchers' & Drovers' B'k, 341.- V. Slater, 993. Dana v. Kemble, 1019. i\ San Francisco, 433, 437, 431. V. Sawyer, 603, 603. «. Third Nat. B'k, 1636. Danber i). Blackney, 1763. Dangerfield v. Wilby, 1275. Daniel v. Cartony, 760. V. Daniel, 1418. ' V. Kyle, 1586, 1587, 1588. Daniels v. Wilson, 758. Dann v. Morriss, 667. Darbishire v. Parker, 612, 911, 1330, 1039, 1046. Darling v. March, 370. Darnell v. Williams, 301. Darrach v. Savage, 453, 971. Darrington )). Alabama, 1733, 1735. Dartmouth College i>. Woodward, 378, 379, 1519, 1530. Darwin «. Rippey, 1386. Da Silva e. Fuller, 1233, 1461, 1618. Daubuz ». Morehead, 331. Davess Co. Courts. Howard, 433, 1533. Davega v. Moore, 105. Davenport ». City B'k, 1681. V. Schram, 700. Therefereneei\ TABLE OF CASES. [_are to the sections. XXXV Davenport v. Sleight, 148. V. Woodbridge, 741. Nat. B'k V. Homeyer, 1737. Sav. Fund Ass. v. N. A. Fire Ins. Co., .331. DaTidson a. Cooper, 1373. V. Jordan, 193. V. Lanier, 143, 147. V. Eamsey County, 1531. V. Stanley, 394, 299. Davies v. Dodd, 1196, 1475, 1479. V. Humphries, 1341. V. Stainback, 1336. 1}. Watson, 1371. Davis' Estate, 1360, 1300. Davis V. Allen. 350, 353, 353. 11. Anable, 1366. ■V. B'k of Tenn., 1033. J). Bartlett, 813, 814, 818. ». Bowsher, 337. «. Briggs, 354, 1183. V Brown, 719, 1317. V. Carlisle, 1373. V. Clarke, 97, 98, 363, 485, 486. V. Clemson, 868, 894. V. Coleman, 868, 918, 1387. V. Desauque, 373. V. Emerson, 1340. ■0. Eppinger, 1309. V. Francisco, 1177. V. French, ■263. V. Garr, 101. 1). Graham, 1316. V. Gyde, 1374. V. Hanly, 1041. V. Humphreys, 1341. V. Jenny, 1418, 1431. ». Jones, 85. V. McCready, 790. ■B. Miller, 5, 734, 735, 775, 783, 786, 1338, 1333, 1436, 1437. D. Morgan, 716. V. Neligh, 735. V. Peck, 686. V. Philips, 1245. V. Proprietors' Meeting House, 383. V. Ramsey Co., 1533. V. Richardson, 133, 135, 136. 1). Staats, 1306. V. Thomas, 859, 860. V. West Saratoga B. Union, 383. Davison v. City B'k, 543. V. Robertson, 114. Dawson v. Bk. of Illinois, 80. V. Goodyear, 793. V. Morgan, 1449, 1459. Day V. Elmore, 1767. V. Nix, 301. i>. Schofleld, 1454. Day «. Zimmerman, 800. Dayton ii. Trull, 1369, 1375, 1376, 1278. Deacon v. Stodhart, 1333. De Aquila v. Lambert, 1730. Dean n. Carruth, 180. V. Lozardi, 83. V. Newhall, 1291. D. Richmond, 343, 354, 1184. V. Speakman, 1483, 1484. Dearbourn ii. Union Nat. B'k, 386. Deardorff «. Foresman, 8.54. Dearing v. Rucker, 170. De Berdt v. Atkinson, 1173. Deberry v. Darnell, 56. De Bignis v. Armistead, 199 Deblieux v. Bullard, 1041, 1043. Debuys ». Mollere, 1140, 1150, 1153. De Camp v. Hanna, 850. Decker, ex parte, 148. V. Mathews, 1483. Deener v. Brown, 1587. Deering v. Chapman, 304. V. Earl of Winchelsea, 1340. De Forest v. Frary, 41, 161. De Freest v. Bloomingdale, 71. De Groot v. Van Duzer, 300. Dehers v. Harriott, 134, 138, 576, 611, 617, 734, 1464. De la Chaumette v. B'k of England, 903, 1468, 1483, 1680. De la Courtier v. Bellamy, 66, 83. Delancy i). Stoddart, 330. Delanney b. Mitchell, 167. Delano v. Bartlett, 164. De la Torre i>. Barclay, 933. De la Vega ». Vianna, 886. Delaware B'k v. Jervis, 733, 1369. Delegal v. Naylor, 916. De Mantort v. Saunders, 351. Deminds v. Kirkman, 1041. Demuth ii. Cutler, 1191. Den «. Clarke, 213. Denegre ii. Hiriart, 979, 983. 11. Milne, 481. Dennett v. Wyman, 613. Dennie ii. Walker, 1133, 1145, 1309,1213. Dennis ii. Morrice, 1163, 1170. V. Table Mountain Water Co., 434. 1). Williams, 1363. Denniston v. Bacon, 794. Dennistoun v. Imbrie, 332. v. Stewart, 940,943,958,979- Denny v. Dana, 304. V. Palmer, 1136, 1173. Denston v. Henderson, 1257. Denton ii. Peters, 713, 730. 1'. Rodie, 360. De Pean v. Humphreys, 933. Depew V. Wheelan, 1483. XXXvi 77««/«rCTces] TABLE OF CASES. [are to me sections. Depuy V. Schuyler, 728. Derry v. Dutchess of Mazarine, 245. Des Arts v. Leggett, 1482. Desbrowe «. Weatherby, 1379. Desha ». Stewart, 480, 683. DesSbse v. Napier, 21, 23. Desmond v. Norris, 124. De Tastet v. Barring, 1444, 1148. Deturler®. Bish, 851,852. Deuters v. Townsend, 1199. Beveling v. Ferris, 1133. Devlin «. Clark, 815. DeVoss V. Cityof Richmond, 1527,1539, 1550. Dewey v. Cochran, 1190, 1309. V. Reed, 149,152, 154,1383,1384, 1385. Dewing v. Sears, 1247. Dewitt V. Perkins, 778. De Wolf V. Johnson, 207, 894, 918, 920, 924. 1). Murray, 951, 983, 1119. D'WolfD.Rabaud, 570, 1767. Dews V. Eastham, 1211. Dexlaux v. Hood, 616. Diamond v. Harris, 724. V. Lawrence Co., 1500. Dibble v. Duncan, 719. Dick V. Leverick, 538. Dickens ». Beal, 945, 959, 960, 961,1050, 1051, 1055, 1076, 1081. Dickerman v. Miner, 1387. Dickerson v. Burke, 728. i>. Derrickson, 1769,1786, 1788. V. Seelye, 1729. v. Turner, 964, 1156. V. Wason, 339. Dickinson ». Hall, 203. 1). Hoomes, 891. V. King, 1260. V. Valpy, 358. Didlake w. Robb, 186. Dietrich v. Bayhi, 62. V. Mitchell, 713. Dillard v. Evans, 56, 1245. ' Dillon V. Rimmer, 1273. Dingwall ii. Dunster, 548, 544, 545, 546. Dinsmore v. Duncan, 441, 1495. Disher ». Disher, 63. Dispatch Line of Packets v. Bellamy Man. Co.. 404. Ditchboum v. Goldsmith, 195. Dively v. Cedar Falls, 420, 1520. Diven v. Phelps, 1690, 1691. Dixon V. Dixon, 832, 1190. 1). Elliott, 1158, 1163, 1164, 1167. V. Nuttall, 599, 619, 621. Dob ». Halsey, 366. Dobbins v. Parker, 835. V. Com. of Erie, 126. Dobree v. Eastwood, 1009, 1033, 1045. Dobson V. Espie, 542. Dod V. Fourth N. B'k, S39. Dodge V. Bank, 748. 1). B'k of Ky., 999. V. Nat. Ex. B'k, 575, 1618, 1663. Doe V. Burnham, 198, 808. •v. Catamore, 1418. V. Newton, 1219. J'. Suckerniore, 1219. Doebling i). Loos, 1260. Dogan V. Dubois, 795. Doherty v. Perry, 797. Dobmey v. Dohmey, 69. Dole «. Lincoln, 34. Dollfus 11. Frosch, 292, 576, 633, 634, 1081, 1198. Don V. Lippman, 878, 896. Donaldson v. Means, 1163. Donally v. Wilson, 1350, Done V. Walley, 1341. Donegan i^ Wood, 9, 581, 614, 946, 947, 1050. Donelly v. Howe, 1147. Donelson v. Taylor, 1480. Donley «. Tlndall, 87, 170. Donner ». Madison Co. B'k, 341. V. Remer, 1016. Donohue v. Gamble, 833. Donovan v. Pitcher, 866. Dooley ». Smith, 1348. Doolittle V. Terry, 719. Dorchester, &c., B'k v. Milton B'k, 623, 661. V. New England B'k, 341. Dorn s. Parsons, 813. Dorsey i). Watson, 1157. Doty 1). Bates, 36], 369, 1361. ®. Knox Co. B'k, 304. Doubleday «. Kress, 573, 574, 575. Dougal ». Cowles, 362, 482, 1260, 1268. Dougherty v. Deeney, 1221. V. Savage, 194. ■!). Western B'k, 647,1685. Douglass 11. Howland, 1767, 1786. V. Matting, 850. ■>;. Reynolds, 1755, 1778, 1785, 1786. V. Scott, 144, 713. V. Wilkeson, 102, 104. Dow V. Moore, 407. ■V. Rowell, 899. V. Sperry, 1351, 1353. V. Tuttle, 158. Dowe V. Schutt, 187, 860. Dowell v. Brown, 1199. Down V. Hailing, 1468, 1595, 1633. Downer v. Cheesebrough, 719, 887. «. Reed, 859. ZVm re/. Mass. Steam Co., 507. V. Snow, 1759, 1767, 1779. «. Weld, 713. ». Wood, 834, 1373. DraYton v. Dale, 93, 227, 260, 536, 1385, 1390. Dresser v. Misso., &c. R. R. Co., 566,567, 758J, 789. Drew V. Towle, 203. Driggs V. Rockwell, 725. Drinkwater v. Tebbetts, 1096. Drumm v. Bradl'ute, 964. Duanesburg «. Jenkins, 1533,1550,1552. Dubois V. Delaware, &c.. Canal Co., 398. Du Rose v. Weddon, 336. Dubreys v. Farmer, 632. Dubuque Co. «. R. R. Co., 1523. Du Carry v. Gill, 375. Ducarse c. Keyser, 748. Ducket V. Van Lilienthal, 956, 963. Duerson's Adm'r o. Alsop, 629, 814, 815, 817, 896, 898, 970. DuflF I). East India Co., 1614. Duffleld 11. Elwes, 24. Duflfy V. Hobson, 123. Dufour V. Morse, 1130, 1143. J'. Oxenden, 497. Dugan V. V. S., 443, 576, 687, 1189,1198, 1227, 1239, 1330. Duggan V. King, 1125, 1316. Duhammel v. Pickering, 331. Duke of Norfolk v. Howard, 654. Duker v. Franz, 1403. Dumont i). Pope, 470, 474, 966. V. Williamson, 670. Dunbar v. Marden, 112. V. Tyler, 1070, 1076. Duncan ». Berlin, 1636, 1643, 1644. D. Louisville, 51, 834. V. McCullough, 1144. Duncan v. Nells. 307. V. Pope, 856. 11. Scott, 857. V. Sparrow, 899. Dundas v. Bowler, 899. Dunlap V. Hales, 332. 11. Smith, 1689. V. Thompson, 1032. Dunn V. Adams, 5, 891. V. Clements, 1400. V. O'Keefe, 454. 11. Snell, 748. Dupays v. Shepherd, 487. Dupeau v. Waddington, 827. Dupont V. Mt. Pleasants Ferry Co., 1188. Duramus v. Harrison, 1428. Duran v. Ayer, 1458a. Durant v. Banta, 762, 763, 767. 11. Iowa Co., 1500. Durdeni). Smith, 1060, 1070. Durgin v. Bartol, 105. Durham v. Manrow, 1779. 11. Price, 1133, 1779. Durkin ii. Cranston, 113. Durnford v. Patterson, 633. Durrum ii. Hendrick, 1084. Dusenbury ii. Ellis, 306. Dutcher v. Porter, 71. Dutchess Co. B'k o. Ibbottson, 959. Dutchess Cotton Manf. Co. v. Davis, 620. Dutton 11. Ives, 834. V. Marsh, 408. Duvall 11. Farmers' B'k, 1093, 1130, 1135. Dwight V. Emerson, 611, 996. v. Newell, 366, 680. v. Scovil, 1087. Dyer ». Covington Township, 433, 434. 11. Gilson, 1763. Dvkers ». Leather B'k, 1584, 1617. 11. Townsend, 803. Eadie v. Ashbaugh, 818, 319, 331. Eagle B'k s. Chapin, 1039, 1051. V. Hathaway, 992, 1005, 1006, 1011, 1914. V. Smith, 740, 1075. Earhart v. Gant, 781. Earl V. Peck, 180. Earl of Shrewsbury v. North Stafford- shire R. R., 377. Earle v. Reed, 226. Early ii. Preston, 970, 1053. V. Wilkinson & Hunt, 298, 300. Earnest n. Taylor, 1116. Easeley v. Crockford, 774. Easterly v. Barber, 703. Eastern B'k v. Brown, 1023. East Haddam B'k ii. Savill, 341. Hartford 11. Hartford Co., 1519. India Co. v. Tritton, 672, 676. XXXviii nerefermce,-\ TxiBLE OF CASES. lar-.tothesectiom. East River B'k ». Buttenvorth, 1266. Eastman ». Commonwealth. 1664. V. Plumer, 1321, 1223, 1236. B. Shaw, 751, 758. v. Turman. 983, 998. Easton v. Isabell, 635. 1'. Prachett, 174, 180. East River Nat. B'k v. Gove, 389. Eastwood V. Kenyon, 182, 240. Eaton ». Boessonault, 1458a. 1). Dennis, 719 D. Emerson, 80. ». McMahon, 719, 1445. Eavans «. Becrest, 342. Eaves B. Henderson, 81. ». Reed, 226. Ebersole v. Ridding, 1233. Eccles 0. Ballard, 613, 663. Ecpert V. Condres, 611. Eddy v. Bond, 205, 1392. Edelen n. White, 1303. Edgecomb v. Dowe, 196. Edgerly v. Shaw, 230. Edie ». East India Co., 623. Edis v. Bury, 131. Edmunds ■». Cates, 983. r. Diggs, 737. 1673, 1675,1677. ■0. Groves, 177. Edmundson v. Drake, 1785. Edon ». Smyth, 1286. Edson V. Puller, 550. v. Jacobs, 1017. Edwards b. Bohannon, 1381. v. Brewer, 1730. D. Brown, 850. V. Dick, 674. 11. Jones, 758. s. McKee, 1478. v. Moses, 1686, 1620. V. Scull, 1195 V. Thomas, 775. Efflcger D. Richards. 150, 154. Egerton e. Pulton Nat. B'k, 336. Ehle D. Chittenango B'k, 56. Eichelberger !). Findley, 1078, 1586, 1588, 1596. Eilberti). Pinkbeiner, 713. Eisner v. Kelley, 1339. Elbert s. McClelland, 1418. Eldred «. Malloy, 41. Elford v. Teed, 464, 650. Elgin B. Hill, 1233. Ellett ». Britton, 51. Ellicott J). Martin, 105, 775, 814. Elliott V. Abbott, 390, 1190. D. A.rmstrong, 741. t). Dudley, 367. D. Giess, 1764. ■». Leveings, 1406. ». Martin, 165, 775. Elliott t). Wheeler, 1584. «. White, 965. Ellis «. Brown, 713. V. Com, B'k, 583, 1031, 1118. -0. Ellis, 40. ». McLemore, 103. ?). Ohio Life Ins. Co., 533, 1361, 1863, 1367, 1371, 1373, 1657. V. Wheeler, 96, 1584. V. Wild, 731. Ellison ®. Chesnut, 146. •0. CoUingride, 35, 1581. v. Jackson Water Co., 316. Ellsworth 0. Brewer, 694, 1304, 1333. «. Fogg, 1289. Elminger i). Drew, 303, 203. Elson v. Denny, 1343. Elting «. Brinkerhoff, 1571. Elwood v. Deidendorf, 1366. Elwell «. Dodge, 394. Ely V. James, 1260. V. Kilborn, 81. Emanuel ». White, 833. Emblen v. Dartnell, 643. Emerson «. Cutts, 694. D. Mun-ay, 154, 1431. V. Providence Hat Man. Co., 277, 394, 400, 401. Emery v. Hobson, 1090, 1587, 1589. ». Irving Nat. B'k, 1731, 1734, 1736, 1750. e. Mariaville, 435. Emly, ex parte, 360. «. Lye, 360, 739. Emmat^ c. Kearns, 1766. Emmons J). Meeker, 143. Empire Trans. Co. s. Steele, 1731. English v. Darley, 1305, 1307, 1336, 1337. «. Wafles, 834J. ». Wall, 481, 1073. Enthoven «. Hoyle, 103, 148. Epler t). Punk, '725, 1437. Epps 11. Dillaye, 1272. Epting D. Jones, 1185. Erie Bank ji. Smith, Randolph & Co., 386. Ernst «. Steckman, 44. Erwin v. Carroll, 262. V. Downs, 592, 675. v. Lynn, 696. 11. Sanders, 158. Esdaile v. Lanauze, 281, 292. V. Sowerby, 1173. Espy v. B'k of Cincinnati, 559, 1568, 1569, 1603, 1606, 1661. Essex Co. D. Edmonds, 713. Nat. B'k 11. B'k of Montreal, 835. Estabrook ». Kyle, 884. 3716 referenees] TABLE OF CASES. [are to the seeUons. XXxix Estabrook v. Smith, 1183. Estes 9. Kyle, 884. V. Tower, 1309, 1210. Etheridge « Ladd, 654. Ething V. Schuylkill B'k, 983. Etna Ins. Co. v. Alton City B'k, 341, Etting V. Schuylkill B'k, 984, 1045, 1053. V. Vanderlyn, 837. Evans v. Anderson, 867. ». Cramlington, 685. 1). Drummond, 1295, 1399. V. Foreman, 1413. V. Gee, 669, 694. ■». Gordon, 1198. V. Kneeland, 1309. V. Kymer, 790. V. Prosser, 1435. ». St. John, 656. V. Underwood, 46. V. "Whyle, 1755. Everard «. Watson, 983. Everett d. Collins, 1623. V. United States, 393. V. Yendryes, 896, 898. Everson v. Carpenter, 333. Evertson v. National Bank, 1489, 1490, 1494, 1497, 1506. 1!. Nat. B'k of Newport, 1489, 1500, 1505. Ewin V. Lancaster, 1834, 1337. Exchange B'k v. Knox, 1681, 1689, 1691. V. Monteith, 384. V. Tiddy, 1689. V. Boyce, 1025. Exeter B'k v. Sullivan, 374. Exon V. Russell, 1379. Pabens «. Mercantile B'k, 334, 341. Pair V. Cranston, 267. Eairohild v. Adams, 1187, 1188. V. Holly, 1253. «. Ogdensburgh, 434. Fairclough v. Pavia, 726. Eairfleld «. Adams, 687, 1195. Pairlee i>. Herring, 503, 504, 511, 552, 563. Eairley v. Roch, 1254. Fairthorne v. Blaquire, 243. Faith V. Richmond, 361, 362. Fake i>. Eddy, 919. Fales V. Russell, 1478, 1480. Fall River Union B'k ii. Willard, 454, 463, 463, 654. Fallows t). Taylor, 196. Fancourt v. Thorne, 51. Fanning v. Consequa, 879. Fanshawe v. Peet, 85. Fant V. Miller, 189, 867, 914. Faquhar s. Southey, 545, 546, 1398. Farbell v. Sturtevant, 181, 182. Farina v. Home, 1713. Farmeloe v. Bain, 1712. Farmer «. Rand, 1390. V. Sewall, 766. Farmers' B'k ■b. Allen, 953. ■V. Battle, 1014, 1023. V. Butler, 1012, 1015, 1034. ■V. Duvall, 598, 658, 1039, 1057. «. Goddin, 1689, 1691. 1). Gunnell, 970, 1021, 1060, 1070. V. Harris, 1032. i>. Mutual Ass. Society, 205. V. Reynolds, 1311, 1465, 1471, 1479, 1695. «. Vail, 331. V. Vanmeter, 703, 1074, 1083, 1113. V. Whitehill, 1219. Farmers' & Citizens' Nat. B'k v. Noxon, 791. Farmers' & Mechanics' B'k v. Butchers' &c. B'k, 390, 391, 1552, 1610. Farmers' & Mechanics' B'k v. Harris, 1032. Farmers' & Mechanics' B'k «. Humph- reys, 854, 1190. Farm.'s & Mech.'s B'k v. King, 1615. V. Rathbone, 1335. V. White, 1669. Farmers' Nat. B'k v. Fletcher, 834. Farmers' &c. Bank v. Hathaway, 793. V. Kercheval, 1788. V. Troy City Bank, 392, 417. V. Wackles, 1106. Farnsworth v. Allen, 602. D. Drake, 139. V. Sharp, 1418. Famum v. Brooks, 211. ». Fowle, 1172. Farr v. Stevens, 1360. Farrar v. Gilman, 393. Farrington ». Brown, 1149. V. Frankfort B'k, 1366. Farwell v. Curtis, 1586, 1590, 1598. V. Hilliard, 1303. ». Kennett, 56. 1). Tyler, 1197. Fassin v. Hubbard, 700, 998. Faulder b. Silk, 313. Faulkner v. Ware, 813. Pawell V. Heelis, 1281. Fay V. Fay, 194. V. Noble, 383. V. Smith, 1373, 1385. Fayle v. Bird, 643. Fear v. Dunlap, 709, 713. xl The re,fermaes\ TABLE OF CASES. lamto theuctiom. Fearn v. Filioa, 809. Pearslake «. Morgan, 1269. Featherston v. Wilson, 83. Pell «i. Cook, 260. Fellows V. Kress, 1229. V. Prentiss, 1329. V. Wyman, 370. Fell's Point Sav. Inst. ■». Weedon, 1703, 1707. Fenby i). Pritchard, 827. Fenn v. Dugdale, 1238. 4). Harrison, 278, 279, 687, 689, 736, 638, 1368. Fenton «. Robinson, 848, 850. 11. White, 235. Fentum v. Pocock, 1319, 1834, 1335. Ferdon ». Jones, 824. Ferguson ». Coppeau, 1733. V. Landram, 1545. «. Oliver, 303. V. Turner, 1311. Fernan ». Doubleday, 1317. Fernandez v. Lewis, 466, 470. Ferner v. Williams, 644. Ferris «. Bond, 91. Fesenmayer ». Adcock, 36. Fetters «. Muncie National Bank, 790, 793. Field V. Lelean, 1279. v. Mayor of New York, 23. v. Nickerson, 607, 609, 611, 613, 1211. ■0. Tibbetts, 787. Pielden t). Lahens, 753. Fields «. Tunston, 724, 735. Fifieid v. Close, 122. Fink V. Fox, 179. Finlay v. Hall, 1458a. Finley v. Green, 707, 729. Finney i>. Bennett, 1691, 1692. V. Callendar, 69, 70. X,. Shirley, 39. First Municipality -o. Orleans Theater Co., 1557, 1563. First Nat. B'k ». Carpenter, 369. 11. County Corns., 1505. ». Crittenden, 656. !). Gav, 63, 283, 399, 316. «. Hall, 417. V. Harris, 1571, 1634. ». Hogan, 396. »; Kelly, 1731. J). Leach, 1604. V. Leath. 1603. !). Leavitt, 1317. v. Lierman, 849. V. Morgan, 368, 1266. V. Morris, 868. ». Needham, 1633. %. Ocean Nat. B'k, 386. First Nat. B'k v. Owen, 600. V. Parsons, 319. ». Plankinton, 207. D. Ricker, 1655, 1657. «. Ryerson, 973, 990, 1106. B Shaw, 1734. n. Silvers, 63. u. Whitman, 1636. of Angelical). Hale, 1188. N. Y. ». Morriss, 868, 934. Firth v. Thrush, 993, 1120. Fish v. Jackman, 1034. Fisher v. Beckwith, 463. V. Bradford, 63, 1301. «. Carroll, 1480. x\ Ellis, 101. V. Evans, 640, 1017, 1030. 11. Fisher, 832. V. Krutz, 322. V. Leland, 782, 789. V. Leslie, 36. V. Mershon, 1482. v. Otes, 748, 834. ». Price, 1095. Fisk n. Brackett, 883. ■». City of Kenosha, 1550. Fiske •('. Eldridge, 403, 405. Fitch v. Jones, 85, 158, 808, 815. «. Lawton, 403. B. Remer, 894. 11. Sntton, 1289. Fitchburg B'k v. Greenwood, 700. e.Perley, 1045. Mut. Fire Ins. Co. v. Davis, 983, Filler ii. Morris, 1115. Fitzgerald v. Reid, 313. V. Williams, 1084. Fitzhugh ?'. Wilcox, 313. Fitzpatrick v. Hearne, 173. Flack V. Green, 1054. Flagg ». Palmyra, 1551. Flanagan v. Meyer, 09. Fleckner t'. B'k of U. S., 52, 388, 393, 687. Fleming v. Burge, 36. v. Fulton, 979. 11. Gilbert, 159. 11. Leiper, 1389. Flemming v. McClain, 1646, 1648. v. Mulligan, 751. Fletcher v. Blodgett, 150, l54. V. Braddyll, 1053. ». Cusheo, 814. 11. Dana, 688. n. Dysart, 819. n. Dyte, 94. «. Froggatt, 1168. Therefereneeul TABLE OF CASES. [areto the sections. xU Fletcher v. Heath, 1335. D. JaoksoD, 1340. ®. Marming, 1647. 0. Schaumburg, 686. V. Thompson, 59, 60. FHght*. McLean, 180. 11. Read, 182. Flint V. Craig, 1395. i\ Flint, 74, 668, 688, 724, 735. v. Rogers, 600, 1209. Flowers v. Billing, 74. Floyd Acceptances, 273, 436, 437, 440, 809, 1544. Foard ii. Johnson, 1030. J). Womack, 1074. Foden d. Sharp, 643. Fogarties v. State B'k, 1637. Fogg «. Sawyer, 786, 1676, 1678. V. Virgin, 405. Foland v. Boyd, 1086, 1087. Folcott V. Ogden, 883. Folger E. Chase, 417, 656, 657, 687, 690, 1398. Follain ®. Dupre, 1038. FoUett V. Steele, 1267. Foltz «. Mey, 760. V. Pouree, 683. Fontaine v. Qunter, 1418. Foot ». Sabin, 365, 866. Forbes ». Cochrane, 866. ». Espy, 186. «. Marshall, 861. Ford V. Angelrodt, 508. V. Beecker, 1291. «. Buckeye Ins. Co., 867. «. Dallam, 1149. «. Ford, 1873. v. Henderson, 713. V. McClung, 1587. V. Mitchell, 927, 1702, 1706. K. Phillips, 232. 11. Thornton, 336, 1427. Fores v. Johnes, 196. Forman v. Wright, 201. Forshay v. Ferguson, 857. Forsyth «. Kimball, 70. Foss s. Nutting, 888. Foster d. Andrews, 359, 367, 369. 11. Callaway Co., 1557. «'. Dawber, 543. «. Essex B'k, 386. V. Fuller, 265, 271. V. Hoyt, 1431. «. Jolly, 80, 199, 730. V. Julien, 1145. V. Mackay, 1471 . V. McDonald, 1003, 1005. V. McKinnon, 850. ». Parker, 1083, 1170. V. Paulk, 1586, 1595. Foster v. Shattuck, 139. V. Smeath, 1015. V. Trustees, 1281. «. Wise, 183. Foulke V. Fleming, 891. Fountain v. Anderson, 371. Fourth Nat. B'k v. Henschuh, 592, 999. Fowler v. Atkinson, 403. V. Brantly, 623, 633, 788. B. Brooks, 1335. «. Clearwater, 1763. V. Hendon, 1053. t). Ludwig, 1267. ». Palmer, 737. V. Strickland, 1843. Fox ». Clifton, 356. V. Poster, 748. e. Whitney, 1317. Fralick v. Norton, 60. Francis «. Rucker, 1438, 1449. Frank v. Kuigler, 668. V. Longatreet, 674. e. Wesaells, 47, 57. Franklin v. March, 88. «. Twogood, 748. V. Vanderpool, 1586, 1595. Franklin B'k v. Freeman, 1583, 1584.. Franklin Sav. B'k v. Heusman, 709. Frazer's Adm'r ». Frazer, 738. Frazier v. Gas B'k, 341. V. Jordan, 1334. «). Warfield, 881, 896. Freakley b. Fox, 1385. Fredd v. Eaves, 681. Frederick i). Clemins, 850. 41. Cotton, 105. Free v. Hawkins, 80, 719. Freeman i). Boynton, 454, 460, 653, 1133, 1148, 1328, 1478, 1480. V. Britton, 750, 763, 763,. 767, 1217. V. Ellison, 63. e. O'Brien, 1449. Freeman's B'k v. Perkins, 991. 13. Rollins, 1326. ». Ruckman,90,648, 667, 748, 879. Freeseo. Brownell, 90, 868, 879, 896, •898. French v. Andratte, 1438. V. B'k of Columbia, 189, 1074,. 1076, 1078, 1083, 1085^ 1170. V. Gordon, 128. V. Jarvis, 1238, 1341. V. Price, 1300 V. Stewart, 1786. V. Turner, 690, 748. Freund v. Importers', &c. B'k, 1603. xlii Thertfermcea] TABLE OF CASES. \_ari to tin sections. Frey v. Kirk, 875. rriend ». Harrison, 195. v. Wilkinson, 993, 1031, 1043, 1051, 1053. Frisbie ». Larned, 1360. Frith V. Thrusli, 1047. Fritsoh v. Heesles.s, 69. Frois 1). Mayfield, 1339. Frontier B'k v. Moss, 1676. Frost 11. Wood, 392. Fry v. Dudley, 56, 57. V. Evans. 368, 1483. V. Hill, 466, 467, 471. «. Bosseau, 56. Fuke ». Smith, 733. Fulford V. Johnson, 1369. Fuller v. Hooper, 410, 1086. «. Hutchings, 815, 1653. v. McDonald, 719, 1091, 1093. V. Scott, 713, 1788. FuUerton «. B'k ofU. S., 656, 1039. ». Sturgiss, 143, 843. Fulton D. McCracken, 949, 990. Fulton B'k v. N. Y. & Sharon Canal Co., 1616. t>. PhcEnix B'k, 1671. Fulton Co. ■». Wabash & Miss. R. R. Co., 1535. Furman ». Nichol, 447. Furz «. Nicholls, 69. Furze v. Sharwood, 983, 985. Fydell «. Clark, 739, 1364. Gable ». Gall, 1383. Gage V. Jaqueth, 1733. V. Mechanics' Nat. B'k, 1784. v. Morse, 1738. V. Sharp, 775,854. Gahn ». Niemcewiez, 1317. Gaines v. Dorsett, 48, 49. ■Gaither v. Farmers', &c. B'k, 760. Galbraith v. Fullerton, 1316. Gale '0. Kemper, 656. ». Miller, 366, 870, 656. v. Walsh, 936, 971. G-alen v. Niemcewiez, 1329. Galladay v. B'k of Union, 963. Gallagher «. Roberts, 658, 1363, 1277. 'Gallery d. Prindle, 513. Galveston R. R. ». Cowdrey, 1543. ' Galway c. Mathews, 94, 358, 360. Gammon v. Everett, 646. V. Schmoll, 508. Gano D. Heath, 1335, 1390. Gansevoort v. Williams, 367. Garden v. Bruce, 1650. ■Gardner v. B'k of Tenn., 964. ■0. Barger, 44. !). Gorham, 1273. I'. Howland, 1731. Gardner D. Maxey, 196, 300. «. Maynard, 1338, 1339, 1240. '0. Walsh, 1387, 1389. V. Watson, 1819. Garforth v. Bradley, 254. Garland v. Jacoms, 358. Garlock ». Geortner, 1468, 1483. Garnett ». Woodcock, 600, 603, 1038. Garr v. Louisville B. Co., 53, 62, 693. Garrard «. Haddan, 1405, 1406, 1407, 1408, 1409. Garton v. Union City Bank, 1188. Garvier «. Downie, 1114. Garvin v. Wiswell, 104. Gascoyne d. Smith, 608. Gaskin ». Wells, 1360. Gaters a. Madeley, 354, 256. Gates B. Beecher, 455, 594, 635. v. Erie, 500. V. McKee, 1773. Gaul ». WiUis, 753, 757, 762, 767, 863, 1317. Gaunt ». Taylor, 1615. Gawtry v. Doane, 584, 1057, 1115, 1149. Gay V. Kingsley, 241, 686. «. Lander, 130. Gazoway v. Moore, 81. Gazzam «. Armstrong, 533, 524, 525, 536, 531. Geary v. Physic, 74, 688. Geiger v. Clark, 713, 996. GeiU ». Jeremy, 1044. Gelpeke ». City of Dubuque, 10, 389, 391, 1497, 1500, 1513, 1514, 1523, 1524, 1535, 1537, 1537. George v. Surry, 74, 688. Georgia Nat. B'k v. Henderson, 337, 1568, 1574. Geralopulo e. Wieler, 939, 940, 941,1358. Gerard B'k v. B'k of Penn Township, 1003. Gerhardt ». Boatman's Savings Institu- tion, 343. German n. Ritchie, 933. Germania B'k v. Distler, 83. Gerwig v. Sitterly, 1274. Getty V. Binsse, 1398. Gibb v. Mather, 519, 643. Gibbon -e. Coggen, 1158. !). Scott, 79, 159. Gibbons r. R. R. Co., 1533. Gibbs «. Howard, 890. V. Linabury, 851. I). Tremont, 898, 918, 930, 931, 1451. Gibson a. Carruthers, 1730. r. Cooke, 17, 31, 32, 451, 452, 743. v. Finley, 32. v. Hunter, 136, 137. «. Miller, 706, 781«., 812. Theref6rences\ TABLE OF CASES. [are to the secUom. xliii Oibson ®. Minet, 1 7, 1 02. V. Powell, 688. V. Tobey, 1263, 1264. Giddings v. Coleman, 1644. Giflerti). West, 731, 734. Gififord, ex parte, 1323. Gilbert v. Dennis, 654, 656, 973, 974, 979, 983, 1473. V. Nantucket B'k, 663. Gilbough t). Norfolk, 1506. Gilchrist «. Donnell, 1003, 1031, 1116, 1117. Glies ». Bourne, 66, 83. V. Mauldin, 34. V. Perkins, 333. Gill V. Cubitt, 773, 1503. V. General Iron Screw Collier Co., 1741. V. Morris, 205. V. Palmer, 978. Gillaspie v. Kelley, 90, 144. Gillespie v. Neville, 979. Gillett V. Averill, 656, 657. 11. Sweat, 1387. Gilliatt «. Lynch, 1 429. Gillingham v. Boardman, 1759, 1764. Gillispie v. Hannahan, 654, 1144, 114S, 1146. Gilly ». Springer, 643. Gilman v. Douglass Co., 1249. V. Peck, 1676. Gilmore v. Bussey, 1260. Gilpike v. Quintrell, 1756. Gilpin v. Marley, 713. Gilstrah «. St. Louis, &c,, E.K. Co., 434. Gimmi v. Cullen, 752, 757. Gmdrat v. Mechanics' B'k, 992, 1007, 1013. Ginn v. Weissenberg, 1563. Gist v. Gans, 1413. V. Lybrand, 1013, 1015, 1145. Givens v. Merchants' Nat. B'k, 703, 1147, 1155. Glasgow V. Copeland, 454. V. Pratte, 973, 990. 1). Sands, 257. Glasscock ». Band, 17.'?. V. Smith, 371. Glazebrook «. Eagland, 1429, 1431. Gleason «. Henry, 1352. J). Wright, 748. Glen Cove Mut. Ins. Co. «. Harrold, 1767, 1779. Glendinning, ex pa/rte, 1323. Glenn v. Farmers' B'k, 197. V. Smith, 1260, 1267, 1368. Glickauf «. Kaufman, 713. Glossup V. Jacob, 494, 495. Gloucester B'k v. Salem B'k, 1361, 1371, 1657, 1669, 1675, 1688. Gloucester B'k iy. Worcester, 1310, 1331. Glover ». Robbins, 1385. «. Thompson, 1475 Glynn «. B'k of England, 1475. Goddard v. Cox, 1250. ». Cutts, 81. ■B. Lyman, 1183. V. Mallory, 1739. V. Merchants' B'k, 533, 684, 1235, 1361, 1368, 1373. v. Sawyer, 894. Goddin v. Crump, 1533, 1557. ». Shepley, 623, 879, 908. Godin V. B'k of Commonwealth, 1018. Goggerty ii. Cuthbert, 721. Golder v. Foss, 1198. Goldschmidt «. New Orleans, 423, 431. Goldsmid «. Lewis Co. B'k, 777. Goldsmith «. Blaue, 1016. Golladay «. B'k of Union, 1074, 1084. Gompertz v. Bartlett, 733. Gonslin v. Commander, &c., 148. Gooch V. Bryant, 1418. Good «. Elliott, 195. «. Martin, 710, 712, 713, 714, 715, 738. Goodale v. Holdridge, 196. Goodall 11. Dolley, 449, 1154. ®. Polhill, 536. Goode 11. Colehan, 46. 11. Harrison, 337. Goodenow ». Tyler, 1260. Gooding v. Morgan, 1260. Goodloe V. Godley, 600, 656. V. Taylor, 43. Goodman n. Eastman, 1373, 1384. V. Harvey, 774. 788, 943, 986, 1230, 1503, 1631. v. Murks, 884. V. Simonds, 143, 391, 775, 776, 814, 1503. Goodnow 41. Warren, 1000. Goodrick v. Gordon, 550, 551, 561. K. Tracy, 1374, 1369. Goodsell «, Myers, 329, 330, 233. Goffldson 11. Johnson, 782. Goodwin v. Coates, 1278. V. Davenport, 611. V. Jones, 884. 11. McCay, 517. n. Nickerson, 81. ». Roberts, 1404. Gordan v. Montgomery, 1094. V. Phelps, 919. Gordon ii. Brown, 4423. V. Price, 1360, 1263, 1264, 1268. V. Sutherland, 1390. V. Wansey, 1238. Gore v. Gibson, 214, 315. 11. Wilson, 703. xHv TlMmferencMl TABLE OF CASES. [aretothesecUms. Gorgier v. Melville, 1504-. Gorham v. Carroll, 1317. Gorman v. Ketchum, 709, Goshen «. Stonington, 1565. B. Turpin, 47. Goslin 1). Griffin, 830. Goss ®. Nelson, 46. Gough 1). TindOD, 35, 63. Gould I'. Coombs, 1387. V. Norfolk Lead Co., 294. 1). Robson, 1305, 1337. V. Segee, 777, 840. V. Stevens, 778. 1). Town of Sterling, 1533, 1533, 1550, 1553. Colliding, ex parte, 366. Goupy V. Harden, 314, 465, 466, 467, 471, 611. Gove V. Vining, 1103. Governor v. Carter, 1673. 13. Daily, 373. Gowan v. Jackson, 999, 1086. Gower s. Moore, 591, 1175. Grace i'. Adams, 1733. Gracie v. Sanford, 453. Grafton B'k v. Cox, 1116, 1117, 1144, 1145. V. Woodward, 158, 159. Graham «. Adams, 56. c. Campbell, 305. ». Cox, 1646. V. Gillespie, 1409. V. McGuire, 173, 674. B. Sangston, 656, 969, 983, 1019, 1036. B. "0. 8. Savings lust., 394. Grand B'k v. Blanchard, 658. Grand Chute ». Winegar, 1537, 1540, 1541, 1543. Grand Gulf B'k v. Wood, 658, 741, 748. Grandin ». Leroy, 730, 790. Grand Lodge of Free Masons v. Wad- dill, 384. Granite B'k b. Ayres, 637, 1118. V. Ellis, 1190. Grant ». Da Costa, 108. V. Ellicott, 790. V. Hawks, 369 B. Healy, 916. B. Hunt, 503. B. Mills, 1381. B. Norway, 1733. 1-. Shaw, 504, 505, 550. B. Spencer, 1108. B. Vaughan, 5, 104, 1504. B. Woods, 40, 41. Grapengether b. Fejervary, 248. Graves b. American Exchange B'k, 677, 1470. «. Clark, 79, 80. Graves B. Kay, 4, 73. Graw V. Hannah, 365. Gray P. B'k of Ky., 790. B. Bell, 613, 996. B. Brown, 1331. B. Cooper, 93, 327, 682. B. Milner, 96, 97, 486. B. Wood, 84, 85. B. Worden, 55, 56. Great Palls B'k b. Parmington, 423, 435. Greathead b. Walton, 70, 899. Greatlake v. Brown, 455. Great West R. R. b. McDowell, 1739. Greele b. Parker, 503, 550, 551, 560, 561. Greeley b. Hunt, 996. B. People, 1533. B. Thurston, 1308, 1309, 1310, 1312, 1232. Green v. Clark, 173. B. Davies, 103. ». Deakin, 366. B. Drebillis, 88. B. Holway, 133, 135. B. Louthaiu, 926. B. Neal, 1525. B. Sarmiento, 875. B. Sizer, 170. B. Skell, 303. • B. Steer, 667. Greene b. Dodge & Cogswell, 1789. V. Parley, 1005, 1007. Greenfield B'k b. Crafts, 1351. Savings B'k v. Stowell,1373. Greenhow b. Boyle, 145. Greening, ex parte, 744. Greenough b. McClelland, 1336. B. Smead, 455,713, 715. Greenshields B. Crawford, 1318. Greenslade v. Dower, 355, 358. Qreenstreet v. Carr, 1471. Greenwalt v. McDowell, 1337. Greenway, ex jmrte, 1475, 1476, 1480. Greenwich B'k b. De Groot, 1008,1115. Greer b. Higgins, 803. B. Perkins, 1669. Gregory b. Allen, 1091. B. Leigh, 263, 403. B. McNealy, 1193. B. Paul, 245. B. Walcup, 539. Greiner b. Ulery, 93. Grenaux b. Reed, 775. 11. Wheeler, 796, 814. Grew B. Burditt, 1437. Grierson b. Sutherland, 97. Griffin b. Central B'k, 1682. B. Goflf, 598,1163. B. Kemp, 1587, 1600. B. Rauney, 122. Griffing b. Harris, 1217. The r^erences] TABLE OF CASES. [are to the eectiona. xlv Griffith V. Cox, 1376. 4). Osawkee Township, 1523. V. Reed, 95, 1336, 1373. Griffiths V. Kellogg, 849. V. Owen, 1370, 1373. V. Perry, 1712. Grimes «. Hillenbrand, 192. V. Piersol, 694. V. Talbot, 1471. Grimshaw v. Bender, 9, 878, 1488. Grjmstead v. Briggs, 1401. Grinman v. Walker, 1016. Grinnell v. Suydam, 1634. Griswold v. Davis, 65, 834, 1333. «. Slocum, 709. V. Waddington, 316, 323, 678, 1063. Grocers' B'k v. Penfield, 791, 814, 836. Grosvenor ®. Stone, 998, 1076. Grover ii. Grover, 34, 1181. GroTes «. Euby, 668. ♦ Grudgeon v. Smith, 983. Grutacap v. WouUuise, 54, 1453, 1454. Guidon v. Robson, 1183. Guild V. Belcher, 301, 204. Guilford v. Sup. of Chenango Co., 1556. Guillaume v. Hamburg, &c. Packet Co., 1740. Guion V. Doherty, 1360. GuUett V. Hoy, 735. Gunson v. Mentz, 1110, 1159. Guptill V. Home, 681. Gumey t. Behrend, 1727, 1750. V. Langlands, 1319. V. Womersley, 731, 1269. GuBtine v. Union B'k, 1833. Guy V. Bibend, 185. V. Harris, 86. 11. Hill, 1317. Gwinnell v. Herbert, 705, 715. Hackettstown Nat. B'k s. Rea, 934. Hackney v. Jones, 105, 664. Hadden v. Rodkey, 664. Haddock v. Crocherom, 370, 371, 373. V. Murray, 1134. V. Woods, 56. Hagey ®. Hill, 1322. Hague V. French, 66. Haight 0. Brooks, 1766. V. Joyce, 807. V. Naylor, 303. Halle V. Pierce, 418. Haines' Adm'r ». Tannant, 336. Haines v. Dennett, 1317. 1). Dubois, 978. Hair v. La Bronse, 81. Hale 1'. Burr, 1144, 1179. V. Clouser, 1385. V. Gerrish, 331, 232. Hale V. Houghton, 1522. V. Wall, 232. Halford «. Cameron's, Coalbrook & Co.. 387. Halifax v. Lyle, 535. Hall V. Allen, 643, 812. V. Auburn Turnpike Co., 386. V. Bradbury, 305. e. Feathers, 815, 817. V. Fuller, 1408, 1658. V. Hale, 775. V. Henderson, 187. «. Keese, 178. V. McHenry, 1387. ®. Newcomb, 709. «. Phelps, 112, 1230. V. Rodgers, 1768. V. Shorter, 128, 130. «. Smith, 361,611, 1618. V. Tafts, 100 V. Wilson, 751, 753, 758, 775, 807, 840. Hallenbeck v. Hahn, 1528. Hallett V. Holmes, 1319. Halley i). Adams, 25. V. Falconer. 700. Halliday i>. Hart, 1837. e. Martinett, 1057. Hallock D. Jaudin, 124, 125. Hallowell, &c. B'k ®. Howard, 1672,1689, 1691. Halls v. B'k of State, 324. Halsey i>. Lange, 724. Halstead e. Brown, 1317. !). Skelton, 519, 642, 1519. V. The Mayor, 483. Haly «. Brown, 1116. «. Lane, 242,675, 1116. Hamber v. Roberts, 1318. Hamer ». Moore, 25. Hamilton v. Cunningham, 1377. V. Hooper, 1887. V. Marks, 775, 796. V. Newcastle R. R. Co., 383, 403. «. Scull's Adm'r, 194. V. Seaman, 370, 378. V. Summers, 869. V. Vought, 775, 795. 11. Watson, 1309. Hammin v. Richardson, 670, 073. Hammond v. Barclay, 491, 498. 11. Duferne, 1070, 1080. V. Hopping, 307. Hammond's Case, 1319. Hamper, ex parte, 351. Hapgood V. Watson, 354. Hanauer v. Doane, 300, 204, 789. D. Gray, 199. V. Woodruff, 171. xlv Tlienfereneea\ TABLE OF CASES. [are to the aeaUona. Hance v. Miller, 694, 1195, 1788. Hancock B'k v. Joy, 253, 681. Hand v. Armstrong, 173, 1458a. Hanger v. Abbott, 218. Hankey v. HiiLter, 13.')1. V. Trotman, 613. Hannibal, Ac. R. R. Co. v. Marrion Co., 1545,1548, 1560, 1564. Hannum v. Richardson, 670, 673. Hanrick v. Andrews, 920. V. Farmers' B'k, 1450. Hansard v. Robinson, 1228, 1475, 1476, 1477, 1483, 1623. Hansberger ». Geigher, 1318. Hansborougli r. Gray, 1335. Hansom v. Crawley, 1400. ». Vernon, 1533. Harbeck «. Craft.- 1587, 1588, 1653. ». Vanderbilt, 1493. Harbert i). Dument, 1317, 1322. Harbison v. B'k of Indiana, 815. Hardeman v. B'k of Middleton, 359. Harden v. Boyce, 1060. Harding v. Rockford, &o. R. R. Co., 1551. V. State, 145. Hardman v. Bellhouse, 1289. Hardy v. Merriraan, 382. D Merriweather, 385. V. Norton, 143. V. Waters, 227. 1). Woodroofe, 635. Hare v. Hentv, 332, 601, 1592. Harger v. Wilson, 753, 758, 766. Hargous v. Lahens, 1455. Hargreave ». Smee, 1755. Harick v. Jones, 760. Harker v. Anderson, 1567, 1587, 1595, 1600, 1607. Harley ®. Thornton, 737, 1676. Harman v. Howe, 86. Harmer v. Killing, 2Sr). D. Steele, 1285. Harner ». Dipple, 233. Harper v. Butler, 883, 904. V. Calhoun, 392. 1). Clark, 124, 125. V. Hampton, 891. V. West, 491. Harrel n. Bixler, 616. Harriman ». Hill, 1190. 1). Sanborn, 50. Harrington v. Fry, 1318. V. Stratton, 203. Harris v. Bradley, 073. V. Brooks, 1309, 1332, 1336. V. Clark, 18, 19, 21, 33, 25, 50, 451,455,594. V. Lewis, 49. 0. Memphis B'k, 1033, 1034. Harris v. Nichols, 790, 797. V. Robinson, 991. V. Shipwav, 1374. V. Wall, 33(.;. Harrisburg B'k v. ileyer, 789. Harrison «. Bailey, 1048. V. Close, 1294. ». Courtland, 1335. V. Crowder, 600. ■V. Edwards, 889, 895. v. Field, 1398. 11. Firth, 805. V. McClelland, 263, 263. V. Pike, 679. ». Richardson, 309. V. Robinson, 1055, 1115, 1116. V. Ruscoe, 979, 981, 989, 990, 991, 998. V. Shurburn, 698. v. Stacy, 884. ♦ V. Williams, 30. 1). Wortham, 1435. Co. Justices ». Holland, 1557. Harrop v. Fisher, 744. Harrow v. Dugan, 1189. Harsh ®. Klepper, 1411. Harshinor v. Bates Co., 1524, 1535a. Hart V. Boiler, 1268, 1373. V. Eastman, 996. 1). Hudson, 1789. V. Mo., &c. F. & M. Ins. Co., 386. ■V. Potter, 869. V. Smith, 617. V. Stephens, 354, 357, 1184. 11. Stickney, 787. Harter v. Moore, 1317. Hartford B'k ii. Barry, 573, 634. V. Green, 654. 11. Stedman, 573, 1005, 1035. 1039. F. Ins. Co. 11. Wilcox, 375. Hartley d. Case, 983, 1036. 1335. 11. Manton, 1390, 1391. 11. Rice, 196. 11. Wharton, 331. V. Wilkinson, 59, 60, 79, 151. Hartman ». Shaffer, 180. Harvey v. Archibald, 933. V. Irvine, 944. V. Martin, 499. V. Smith, 1406. •V. Towers, 166, 808. V. Troupe, 1149, 1165, 1167. Harwood «. Jarvis, 1086. Hasbrouck ■». Milwaukee, 1556, 1563. V. Palmer, 56. Hascall ii. Life Ass. of America, 485. 11. Whitmore, 803. Hasey v. White Pigeon Beet Sugar Co., 434, 483. The references] TABLE OF CASES. [.are to the eecUona. xlvil Haskell v. Boardman, 1040, 1041, 1131, 1139. ». Champion, 1387. ». Cornish, 406. V. Mitchell, 741, 745. Haslett V. Ehrick, 1043. «. Kunhardt, 1111. Hastings v. Pepper, 1739. Hatch B. Burrough,-197, 807. v. Frays, 108. V. Searles, 147. Hatcher v. Stalworth, 503. Hatchett v. Baddeley, 343, 346. Hatfield v. Phillips, 1731. Hathwick ii. Owen, 99. Hatten v. Robinson, 1687. Hauer v. Patterson, 719. Haughton v. Ewbank, 296. Havemeycr ». Iowa Co., 1533, 1535. Haven ». Grand June. R. R. Co. 1491, 1493. ». Hobbs, 299. Havens ». Talbott, 1105. Haverhill, &c. Ins. Co. ■». Newhall, 403. Haveria v. Donnell, 81, 517. Hawkes v. Phillips, 713, 1760. V. Salter, 1041, 1054. ■». Saunders, 182. Hawkey «. Berwick, 635. ». Foote, 1360. Hawkins «. Cardy, 668. V. Rutt, 1024. ». Watkins, 56. Hawks V. Hinchliff, 1366. Hawley «. Sloo, 918. Hawse v. Crowe, 1369. Haxtun ». Bishop, 645, 1181, 1685, 1691, 1693. Hay V. Ayling, 204. V. Goldsmidt, 293, 293. Haydock ii. Lynch, 50, 161. Hayes «. Canfield, 748. V. Caulfleld, 667. 11. Ward, 1311. ■V. Warren, 183. Haynes ». Birks, 993, 1036, 1039, 1043, 1335. Hays V. Crutcher, 403. «. McClurg, 1375. v. Myrick, 1330. V. N. W. B'k, 970. ». Stone, 1368. Hayward i>. B'k of England, 655. V. French, 257. 1). Pilgrim Soc. , 383. Hazard ». White, 1093, 1147, 1156, 1317. Hazlehurst ■». Franklin, 921. Hazleton ». Union B'k, 1703. Headly «. Reed, 1645. Healey v. Story, 403. Healy «. Oilman, 1588, 1596, 1646, 1647. V. Gorman, 919. Heane ». Rogers, 1330. Heard ii. Stanford, 258. Heartt v. Rhodes, 1033. Heath, ex parte, 1077, 1085, 1170. i>. Samson, 165. V. Silverthorn Mining Co., 827. Heaton ». Hulbert, 1781, 1786. 1). Knowlton, 193. Hedger v. Steavenson, 983, 983. Hedley «, Bainbridge, 358. V. Reed, 1646. Heenan v. Nash, 863, 488. HeflFelfinger ». Shutz. 1430. Heflfner i). Wenrick, 1418. Hefford v. Morton, 1 305. Hefner «. Dawson, 1353. 11. Vaudolah, 1353. Helborn «. Artus, 663. Helfenstein's Estate, 25. Heller v. Meis, 834. Hellings v. Hamilton, 1676. Helmer v. Krolick, 43, 770. Helmsley ti. Loader, 287, 1320. Helper v. Alden, 33. Hemmenway v. Stone, 94, 1390. Hemphill ». B'k of Ala., 147. «. Hamilton, 367. Henchman «. Lybrand, 1383. Henderson ti. Anderson, 1317. •B. Ciimmings, 331. 11. Fox, 335. 11. Irby, 1469. v. Johnson, 1764. V. Palmer, 196. ii: Pope, 1576. Hendricks ». Franklin, 931, 1438. V. Judah, 738. Adm. V. Thornton, 100. Hendrie ii. Berkowitz, 753. Henman v. Dickinson, 1418. Henry v. Bishop, 113. V. Coleman, 150. 11. Jones, 626. 11. Lee, 603. ». Ritenour, 184, 185. v. Thompson, 1458a. Henshaw v. Dutton, 68. Hepburn ii. Griswold, 1348. 11. Toledano, 1180. Hereth ii. Mever, 50. 11. Merchants' Nat. B'k, 797, 803,. 804, 1394. Hern ii. Nichols, 391. Herndon v. Givens, 1471. Herrick v. Baldwin, 1145, 1146. V. Borst, 1339. v. Malin, 1418. 11. Woolverton, 608, 1315. xlviii Tlie referenL-es-] TABLE OF CASES. [are to the sections. Herring », Kesee, 1567, 1568, 1569, 1573. T. Sauger, 1373. T. Woodhull, 688. Ilersey r. Elliott, 260, 685. Hertel r. Bocrert, 266. Hestone o. Williamson, 664. Hetherington v. Kemp, 1054. Heugh ('. Jones, 248. Uevey's Case, 1345. Hewins v. Cargill, 1384. Hewitt ». Goodrich, 1318, 1337. v. Kaye, 26. «. Thompson, 1043. Heylin i>. Adamson, 669. Heyward ». Heyward, 356. 11. Stearns, 735. Heywood «. Perrin, 79, 150, 154, 1410. v. Waring, 1379. Hibblewhite v. McMowrie, 148. Hibernian B'k v. Everman, 368, 725. Hickerson v. Raiguell, 790. Hickligg v. Hardey, 450. Bioks V. Brown, 921. ■V. Hindo, 803, 311. Hidden ». Bishop, 790. Hier v. Staples, 348. Higgins v. B. R. & Aw. & M. Co., 1347. V. Morrison, 999. V. Nichols, 643. V. Senior, 803. D. Watson, 716, 1776. Highmore v. Primrose, 108. Hightower c. Ivey, 1093, 1173, 1327. «. Maull, 87. Higley «. Newell, 76. Hilborn d. Alford, 74. Hildeburn -o. Turner, 955. Hilder v. Seelye, 1476. Hill V. Alford, 41. 11. Allen, 648. V. Barnes, 1418. v. Bostick, 1366, 1337. v. Buckminster, 179. V. Calvin, 1785. 11. Cooley, 1379. V. Ely, 731, 723. 11. Gaw, 80. V. Halford, 41. ^. Heap, 450, 1105, 1170. i\ Henry, 1311. v. Kraft, 784, 800. 11. Lewis, 104, 105, 663, 669, 743. 11. Martin, 1170. v. Norris, 1070, 1083. V. Norvell, 636, 1037. r. Planters' B'k, 993. r. Stevenson, 33. V. Sutherland, 1250, 1351. 11. Todd, 54. 11. Varrell, 1030, 1117. Hill P. Wilkes, 891. Hills 11. Place, 643, 043. Hilton r. Houghton, 67. V. Shepherd, 987, 1067, 1125. Himmelman v. Hotaling, 613, 654, 1590. Hindhaugh n. Blakey, 504. Hindley ii. Marean, 886. Hine ii. AUebv, 1036, 1119, 1235. Hinely ii. Margaritz, 334, 235. Hinesburgh v. Sumner, 196. Hinsdale ii. B'k of Orange, 1478, 1479, 1482, 1693. 11. Miles, 1464. Hinton v. Bank of Columbus, 582. Hirschfleld ii. Smith, 94, 1391. Hitchcock 11. City of Galveston, 1520. 11. Sawyer, 134. Hoar 11. Da Costa, 655. Hoare ii. Cazenove, 531, 1527. V. Graham, 79, 159, 719. Hobart v. Dodge, 89. Hobson 11. Davidson, 1741. Hodges V. City of Buffalo, 1519. 11. Eastman, 113. V. First Nat. B'k, 894, 395. 11. Gait, 1029. 11. Hunt, 333. 11. Shuler, 53, 159, 976, 977. 11. Steward, 104. Hodgson 11. Dexter, 445, 1564. KoSii. Baldwin, 1056. Hoffman & Co. ii. B'k of Milwaukee, 174, 175, 479, 583, 803. Hoffman n. Smith, 1083. Hogan v. Cuyler, 615. 11. Moore, 803. Hoge 11. Lansing, 753. Hogg V. Skene, 369. V. Snaith, 392, 293. Hogue V. Davis, 703. Hoit 11. Underbill, 233. Holbrook v. Basset, 385. 11. Lackey, 1428. V. Mix, 775. 11. Vibbard, 899. Holcomb 11. Wyckoflf, 757, 758. Holden ii. Cosgrove, 168, 177. Holdsworth v. Hunter, 114, 115, 116. Holeman ii. Hobson, 181, 751, 814. Holford 11. Wilson, 1165. Holladay D. Atkinson, 174, 179, 180, 337. V. Sigil, 1468, 1471. Holland n. Hatch, 1398. V. Turner, 1134. Holley 11. Adams, 25. Holliday v. Lewis, 67. HoUier v. Eyre, 1334, 1336. HoUingsworth ». City of Detroit, 1513. Rollins V. Fowler, 1372a. Holman v. Gilliam, 94. Tlier6f6rmces-\ TABLE OF CASES. V'rutotMseaUons. Holman v. Holson, 758, 778. V. Langtree, 1276. V. Whiting, 1085, 1135. Holme D. Karsper, 813, 814, 816. Holmes «. Crane, 1730. «. Holmeg, 257. v. Hooper, 698. ®. Jacques, 101. «. Kerrison, 619. V. Kidd, 735 V. Smyth, 833, 1057. V. Trumper, 1406. Holroyd w. Whitehead, 1186. Holt ». Moore, 81. ». Ross, 538. Holtz D. Boppe, 456, 591. Home Ins. Co. v. Greene, 978. Homer «. Wallis, 1393, 1410. Honored). Blakewell, 1381. Hood ». Hallenbeck, 407, 418, 1095. Hooker «. Gallagher, 683. Hooper d. Keay, 1350, 1251, 1353. ». Rathbone, 1741. ■v. Williams, 130. Hoovers Assignee v. Wise, 344. Hope V. Oust, 366. Hopes V. Alder, 1158, 1163. Hopkins v. Adams, 1481, 1486. ». Beebee, 22. «. Crittenden, 1458ffl. «. Kent, 738. V. Liswell, 1163. «. Mehaffy, 307. V. R. R. Co,, 33. ». Richarson, 1763. Hopkinaon ». Forster, 1567, 1636, 1637, 1638, 1639, 1645. Hopkirk v. Hage, 664, 748, 1074, 1076, 1080. Hopley V. Dufresne, 1153, 1155. Hopper e. Eiland, 63. Horah «. Long, 1187, 1189. Hornblower i'. Prond, 837. Home «. Planters' B'k, 1353. 4). Redtearne, 40. Homes ». Hale, 850. Horst t. Wagner, 1415. Horton ». Bayne, 796, 813, 815. Hortons e. Townes, 291, 333. Hortonsman ». Henshaw, 533, 534, 538, 1354, 1356, 1363, 1366. Hotchkiss v. Mosher, 704. Hough «. Barton, 1472, 1483, 1488. «. Gray, 1779. Houghton V. Adams, 1676. ». Francis, 1398. Housatonic B'k v. Laflin, 979, 983. House v. Adams, 1059, 1060, 1070, 1071. Housego V. Cowne, 972, 1017. Houston V. Banner, 713, 1017. Vol. I.— D Housum V. Rogers, 1689. Houx ». Russell, 1687. Hovey ®. Bannister, 403. V. Magill, 404. Howard v. Bowman, 643. ». Central B'k, 1453. V. Duncan, 1351. V. Ives, 331, 992, 1039, 1043. v. Mississippi Valley B'k, 1359'-. V. Oakes, 254. ». Palmer, 105. ». Windham Co., 1185. Howe «. Bowes, 1119. ■0. Bradley, 979, 984, 1018, 1019. ». Carpenter, 124, 135. ». Hale, 1483. «. Litchfield, 194. V. Merrill, 707, 719, 759. «. Quid, 63. ». Potter, 758. V. Purves, 1390. i>. Wildes, 240. Knox & Co. V. Ould & Carring- ton, 63. Howell ». Crane, 174, 728, 786, 803. ». Jones, 789, 1789. v. Wilson, 899. Howry ». Eppinger, 51, 775. Hoyt «. Lynch, 73. «. Macon, 304. 0. Seeley, 1586, 1587, 1596, 1652. V. Thompson, 317, 395. v. Wilkinson, 1204. Hubbard e. Chapin, 758J, 808. «. Gurney, 1339, 1338. V. Harrison, 62. «. Jackson, 1237, 1342. V. Matthews, 333, 593, 861, 998, 999. V. Rankin, 850. V. Town of Lyndon, 423. v. Troy, 936. ». Williams, 1402. Hubbell D. Flint, 300, 1350. Hubbersty ». Ward, 1733. Hubble v. Fogartie, 108. Hubbly «. Brown, 1305. Huber «. Steiner, 884. Hubner ». Richardson, 306. Hudson v. Goodwin, 1195. ». Matthews, 616. Huedekoper ». Buchanan Co., 1553. Huff v. Wagner, 758. Huffaker ». National B'k, 656, 946. Huffman ». Walker, 1231. Hughes V. Bowen, 1147, 1148. V. Kiddell, 668. «. Large, 725, 1437. 13. Nelson, 260, 743, 744. V. Wheeler, 108, 1374. The references^ TABLE OF CASES. [are to the secti07is. Hull V. Blake, 800. ■B. Conover, 574, 741, 1197. Hulme V. Teoaut, 247. ■B. Turner, 307. Humboldt Township v. Long, 1542. Hume v. Watt, 999. Humphreys. Hitt, 1311, 1339. Humphreys ii. Bicknell,1586,l.')87,1596. V. Chastaiu, 370, 683. V. Clement, 1347. V. Guillow, 1390, 1403. Humphreyville «. Culver, 1181, 1198. Hunt 11. Adams, 74, 94, 1333, 1404, 1763. V. Aldrich, 1190. 1]. Bell, 195. V. Divine, 56, 1707. V. Gray, 1413. 11. Hall, 918. V. Johnson, 891. 11. Massey, 330. 11. Maybee, 586, 656, 1144. r. Santord, 775, 778. 11. Standart, 879, 898, 899, 901. 11. Stewart, 1218. 11. Wadleigh, 1173. Hunter, ex parte, 1013. 11. Blodgett, 136. «. Cobb, 136. n. Hempstead, 694. 11. Hook, 1103, 1148. u. Ingraham, ,514. 11. Jeffrey, 736. v. Jett, 1330. V. Van Bomhorst, 969. «., Wilson, 174. Huntington ii. Branch B'k, 147, 848. V. Finch, 1390, 1430. 11. Harvey, 1147, 1304. V. Wellington, 1763. Huntley ii. Sanderson, 1045. Huntzinger v. Jones, 1646. Hurd 11. Hall, 733. V. Little, 1328. Hurst 11. Chambers, 731. Husband v. Epling, 41. Huse v. Alexander, 1366. 11. Hamblin, 56, 57, 1706. Husk v. Smith, 370. Hussey n. Freeman, 6, 1106. 11. Jacob, 6, 521, 535. V. Sibley, 731, 734. V. Winslow, 38, 78. Huston 11. Noble, 1245. V. Weber, 1276. 11. Young, 83, 630. Hutchings v. Olcutt, 1260, 1279. Hutchinson v. Bogg, 177, 815. V. McCanu, 766. Hutton V. Eyre, 1391. Huyck v. Meador, 38, 39. Hyde ii. First Nat. B'k, 341, 344. V. Franklin Co., 4 J3, 437, 435. 'c. Gooduow, 867, 868, 879. 11. Page, 303, 305. 11. Planters' B'k, 341. 11. Price, 248, V. Stone, 1159. Hyslop V. Clark, 204. V. Jones, 1003. Ide n. Ingraham, 374. Ihmsen v. Negley, 357. Illinois Cent. R R. Co. ii. Owens, 1782. Ilsley 11. Jones, 562, 564. V. Stubbs, 173. Indiana, &o. B'k ii. Colgate, 1781, 1784. Indiana, &c. K. R. Co. v. Davis, 424. Ingalls 11. Lee, 669, 674, 761, 766. Ingersoll f. Long, 899. Ingraham c. Gibbs, 114. Ingram r. Forster, 493. Inhabitants c. Weir, 433. Innes ii. Munro, 159. 11. Stephenson, 1613. International B'k v. German B'k, 1706. Ireland r. Kip, 1014, 1016. Irish v. Cutter, 715. r. Nutting, 26. i\ Webster, 443. Irvin 11. Maury, 5. Irvine ». Lowry, 56. Irving B'k v. Wetherald, 135, 493, 1608. 1610,1621, 1655. Irwin V. Brown, 31. «. Planters' B'k, 1479. Isaac J). Daniel, 1319. Isbery v. Bowden, 1429. Iser i\ Cohen, 710. Isnard v. Towes, 1405. Israel v. Douglas, 23. v. Israel, 36. Ivesj). Bosley, 710, 713. V. Farmers' B'k, 143, 146. Iveson, ex parte, 56. Ivory «. B'k of State, 327, 1574. ?). Micheal, 142, 1385, 1408. Jaccard ». Anderson, 1094, 1095. Jack n. Morrison, 713. Jacks «. Darrin, 1049, 1105, 1473, 1596. 11. Moore, 1425. «. Nichols, 923. Jackson d. Brown, 382. 11. Claw, 398. n. Gumaer, 313. 11. Henderson, 633. «. Hudson, 98, 485. V. Jackson, 163, 1471, 1479. V. King, 308. 11. Newton, 598. Tliere.fe,renDea\ TABLE OF CASES. \.an to m ieetUms. Jackson v. Packer, 650, 1317. ». Parks, 241. D. Phillips, 1219. V. Pigot, 491. . !). Richards, 1035, 1083, 1172. «. Union B'k, 341. ». Van Dusen, 208. «. Vicksburg, &c. R. R., 1501. «. Walker, 196. V. Yendes, 1785. D. Y. & C. R. R. Co., 1511. Jackson County v. Hall, 1491. Jacobs V. Benson, 100. D. Hart, 1376, 1404, «. Town, 1017. Jacquin v. Warren, 36, 119. Jaffray b. Dennis, 919. James v. Badger, 1327. «. Catherwood, 913, 914. V. Johnson, 1433, 1492. ■w. Rogers, 78. «. Taylor, 250. V. Wade, 1060, 1070, 1147. Jameson v. Swinton, 601, 987, 990, 1038, 1044. Jansen ». Thomas, 617. January v. Goodman, 112. Jaqua u. Montgomery, 863. Jarvis d. Garnett, 080. D. St. Croix Manf. Co., 1033. Jefiferson Co. B'k v. Chapman, 1672, 1690. Jeffries'!). Austin, 174. Jefts B. York, 307. Jenkins v. Hart, 33. «. Hutchinson, 307, 485. ®. Morris, 362. «. Reynolds, 1764. «. Shaub, 824. V. Temples, 196. Jenks V. Barr, 1289. v. Boylesburg, 656. Jenners v. Howard, 214. Jenney ». Hearle, 50. Jennings v. Roberts, 979, 989. ». Thomas, 710, 716. Jennison «. Parker, 826, 1276. «. Stafford, 827. Jenys v. Fawler, 533. Jeune «. Ward, 499, 500, 682. Jewell V. Parr, 1206. B. Wright, 868, 908, 934. Jewitt «. Smith, 261. John v. Farmers' B'k, 93. Johnes v. Phoenix B'k, 234. Johnson, ex parte, 1173. V. B'k of Fullerton, 933. V. B'k of U. S. 1395. ». Barney, 1701, 1703. 2). Bentley, 1565, Johnson «. Berlizheimer, 870. •0. Blasdale, 147. «. Carpenter, 748, 854. ■0. Chadwell, 311. V. Cleaves, 1368. V. Collins, 555, 558, 559. ». Crossland, 62. «. First Nat. B'k, 1364, 1657. «. Frisbie, 54. V. Gilbert, 1703. V. Haith, 1175. v. Heagan, 150, 154, 1397. V. Johnson, 1350. V. Josey, 728 11. Kennion, 1237. 11. Kent, 1439. v. Lane's Trustees, 71. V. Mangum, 680. V. Martinus, 717. 11. Meeker, 198, 808. 11. Searcy, 1094. 11. Smith, 307, 403. V. Stark, 663. ®. Stark County, 317,1497,1500. 1509,1511,1513,1514,1524. 11. Thayer, 31. v. Titus, 303. V. Way, 775, 769. v. Weed, 1373. Joliffe 11. Higgins, 161. Jones «. B'k of Iowa, 552. 11. Berryhill, 780. n. Broadhurst, 1337, 1239, 1240. v. Brown, 1817. ». Darch, 93, 337, 393, 535, 536. ». Deyer, 34. 1). Fales. 55, 56, 150,154,616,658, 1048, 1888, 1410, 1473, 1478, 1481. n. Fort, 576, 1339. V. Heiliger, 1600. V. Hibbert, 756. V. Hook, 884. V. Ireland, 1401. V. Jones, 183, 1318. v. Lane, 1199. V. Lathrop, 313. ». Le Torabe, 439. ». Lewis, 1015, 1032. «. Mars, 288 . , 11. Middleton, 611, 996. 11. Nellis, 663. 11. O'Brien, 1158. 11. Ryde, 731, 1675. V. Savage, 1149, 1159, 137 V. Shelbyville Ins. Co., H'i. V. Simpson, 53. V. Strawhan, 1360. 11. Thayer, 1758. V. Thorn, 683. The references', TABLE OF CASES. ianUtlieieotions. Jones B. Thornton, 370. ». Turnour, 1318. s. Warden, 1 053. Jordaine ». Lashbrooke, 14, 1317. .Jordan ». Bell, 1458. V. Tarkington, 534. B. Tate, 43. ». Thomas, 1389. V. Wheden, 473. !). "Whittier, 741, 748. Joseph «. Nat. B'k, 142. Josseljn ». Lacier, 50, 101. Judah V. HaiTis, 56. Judd B. Smith, 1586. Judson «. Corcoran, 747. Julian V. Shortbrook, 508, 509. Juniata B'k v. Hale, 591, 973, 988, 1175, 1177. Kahnweiler v. Anderson, 30, 31. Kamm ®. Holland, 708, 716. Kanaga -o. Taylor, 867. Kasson t,. Smith, 789, 794. Kaufman b. Barringer, 497. Kay ». Brookman, 113. V. Duohesse de Peinne, 245. Kayser v. Hull, 716. Kean d. Davis, 411. Kearney v. King, 11, 1580. 1). West Granada Mining Co., 113. Kearslake v. Morgan, 1373. Kearsley v. Cole, 1295, 1333. Keefe v. Volge, 196. Keeler v. Bartine, 1890. Keene v. Beard, 1567, 1587, 1638, 1653, 1653. Keith D. Jones, 56. Keithsburg -o. Prick, 317, 1545. Kellers. Hicks, 439. V. Weeks, 433. Kelley v. Brown, 1149, 1584. ®. Hemmingway, 46. V. Mayor of Brooklyn, 430, 437, 430, 433, 434, 1530. Kellogg ■0. Budlong, 1687. «. Dunn, 715. V. Pancher, 800, 833. V. Prench, 800. V. Schmaake, 783. V. Steiner, 849. Kelly «. Scripture, 1734. Kelmer n. Krollick, 834. Kelsey d. Hibbs, 76. Kelso xi. Prye, 153. Kelty D. Bank, 1590. Kemble i>. Christian, 830. V. Lull, 517, 534. i>. Mills, 1084, 1596. Kemp v. Balls, 1235. Kemp ». Find™, 1341. Kendall v. Galvin, 108. D. Roberson, 197, 198. Kendrick v. Campbell, 551. v. Porney, 1343, ®. Lomax, 1366, 1339, 1458. Kennan v. Nash, 485. Kennard v. Cass Co., 1509, 1510. «. Knott, 1319. Kennedy v. Geddes, 551, 553, 556, 1045. V. Knight, 894. v. Lancaster Co. B'k, 1418. V. Murdick, 196. Kenner d. Creditors, 508, 633. Kennicott v. Supervisors, 1520, 1528, 1537, 1550. Kenningham v. Bedford, 1317. Kennon't). McRae, 611,1048, 1110,1148, 1163, 1195. Kenny », Hinds, 50. Kent « Reynolds, 1343. V. Rogers, 1431. ■D. Warner, 1048. Kenyon v. Williams, 303, 305. Kephart «. Butcher, 1276. Kern v. Van Phul, 963, 1093. Kernodle v. Hunt, 303. Kerrison -o. Cooke, 1333. Kershaw d. Cox, 1395, 1403, 1404. Ketchum ». City of Buffalo, 383, 1530. •0. Duncan, 1491. B. Gray, 1779. Key «. Plint, 790. v. Knott, 1671. Keyes B. Penstermaker, 606, 1163.. ». Winter, 1085. Keymer 'o. Lawrie, 336. Kidder v. Blake, 204. e. Norris, 1353. Kidson v. Dilworth, 717. Kierstead v. Rogers, 1194. Kilgore v. Bulkley, 632, 634, 979, 983, 1703. v. Dempsev, 922, 923. Kilgour 11. Finlayson, 292, 360, 373. Kilkelly v. Martin, 1385. Killian v. Ashley, 713. Killough v. Alford, 1247. Kimball «. Bittner, 314. v. Bowen, 963. V. Cleveland, 393. t>. Huntington, 39, 163. Kimble v. Christian, 853. Kimbro v. B'k of Fulton, 1684. V. Bullit, 358, 368. ■0. Holmes, 638. v. Lytle, 793. Kincaid v. Higgins, 80. Kinchloe v. flolmes, 1785. Kine «. Beaumont, 1051. nerefiremei\ TABLE OF CASES. [aretotheseetkma. liii Eiug 1). Baldwin, 1311, 1339. ». Buckley, 983, 985. V. Crowell, 637, 638, 654, 1036, ». Dedham B'k, 1685. 1). Doolittle, 833. 13. Paber, 858. D. Fleece, 1193. V. Fleming, 69. v. Gillet, 1288. 1). Hoare, 1394, 1396. 13. Holmes, 638. «. Hourie, 94. «. Johnson, 760. V. Lambton, 63. «. Milsom, 1470. v. Morrison, 1394. V. Ridge, 753, 763. V. Thorn, 263, 263, 368, 370. Kingsberry v. Pettis County, 433. Kingsbury «. Butler, 88. Engsley «. Buchanan, 1283. V. Pvobinson, 1083. Kingston B'k v. Ettinge, 1863. Kinney ». Ford, 67. V. Heald, 449. «. Kruse, 818. Kinyon v. Wohlford, 769, 837. Kirby ». Duke of Marlborough, 1350. V. Sessin, 1475. Kirk 2). Blurton, 361, 363. 13. Dodge Co. Mut. Ins. Co., 52. 13. Strickwood, 196. Kirkman 13. B'k of America, 67. «. Benham, 363, 363. V. Boston, 719. Kirkpatrick v. McCullough, 996. Kirksey 13. Bates, 946, 1338. Kirshner 13. Conklin, 703. Kirtland v. Wanzer, 887, 928, 959. Kitchen v. Bartsch, 1331. V. Place, 1406. Kittle ». DeLamater, 782. !). Wilson, 1317. Klein ®. Boernstein, 1018. 13. Currier, 713, 1760. 13. Keys, 174. Klockenbaum v. Pierson, 979. Klosterman 13. Loose, 405. Knapp 13. Grant, 1560, 1561. 13. Mayor of Hoboken, 430. 13. McBride, 369. Knight?). Hunt, 194. V. Jones, 99. D. Leigh, 1468, 1483. 13. Lord Plymouth, 387. u. McReynolds 49. D. Packard, 1317. V. Pugh, 165, 814. Knights V. Putnam, 759. Knill V. Williams, 1394. Knott ®. Venable, 617, 1032. Kuox V. CliflFord, 827. 13. Lee, 1248. V. Eeedside, 513, 514. V. The Nivella, 17^9. Co. ». Aspinwall, 317, 1523. Koch 13. Howell, 499. Kock V. Bringer, 1005. Kohlen v. Smith, 1458. Konig V. Bayard, 520, 524, 993. Koontz v. Central Nat. B'k, 1373. Kost V. Bender, 805. Kountz 13. Kennedy, 1415. Kramer 13. Sanford, 1130, 1134, 1137, 1139, 1143. Krampt's Ex. v. Hatz's Ex , 1753. Krumbaar ». Ludeling, 311. Kuhns 13. Gettysburg Nat. B'k, 1653. Kunezi 13. Elvers, 891, 898. Kuntz 13. Tempel, 637, 710. Kuph 13. Weston, 1031. Kyle V. Bostick, 1317. i>. Green, 1133, 1135. «. Thompson, 576. Kyner v. Shower, 713. Lacoste ». Harper, 1079. Lacy 13. Holbrook, 56. 13. Kinnaston, 1291. Ladd ®. Baker, 94. 13. Kenney, 1153. V. Rogers, 141. Lafayette B'k 13. St. Louis Stoneware Co., 386. «. State B'k, 393. Lafltte v. Slatter, 1076. Lagow 13. Badollet, 1381. Lagrue v. Woodruff, 553. Laing 13. Barclay, 109, 503, 1455. 13. Meader, 1338. Lake «. Havnes, 669. ®. Reed, 775. 13. Stetson, 715. V. Trustee, 433, 433. V. Tysen, 71. Lamb v. Durant, 1737. V. Moberly, 1468, 1483. Lambarde v. Older, 1432. Lambert, ex parte, 1355. V. Ghiselin, 1050, 1055, 1058, 1115, 1335. 13. Heath, 734. V. Jones, 18, 913, 914. 13. Sandford, 1335. Lamon v. French, 514. Lamorieux v. Hewit, 1784. Lampkin v. Nye, 620. Lampton v. Haggard, 56. Lancaster Nat. B'k v. Smith, 386. 11. Taylor, 706, 745. liv nerefcvmceil TABLE OF CASES. {are to the sections. Lancaster Nat. B'k ». Woodward, 1633, 1647. Lancy v. Olark, 1231. Land p. Cowan, 14i8. Landrum v. Trowbridge, 449,4.54, 1153, 1154. Landry «. Stansbury, 1177, 1179. Lane v. B'k of West Tenn., 1058, 1070, 1078, 1119. V. Krekle, 93, 136, 139. 11. Baiter, 94. V. Stacey, 704. «. Stewart, 1093, 1163, 1165, 1196. Lanfair v, Sumner, 1737. Lanfear ». Blossman, 775. Lang '0. Gale, 634. J). Smyth, 116, 1.504. Langan n. Hewitt, 365. Langdale v. Trimmer, 993. Langdon v. Hulls, 1052. Lange ». Kohne, 56. Langcnberger v. Kroeger, 654, 1373. Langhorne & Scott v. Robinson, 1556, 1557, 1558. Langley v. Palmer, 649, 650. Langston !'. Corry, 508. V. S. C. R R. Co., 1500, 1507, 1513, 1514. Langton ii. Hughes, 200, V. Lazarus, 540. Lansing v. Gaines, 63, 370, 371, 874, 875. Lanuire ». Dorrell, 1373rt. Lanussa v. Jlassicot, 636. Lanusse v. Barker, 916. Lapeyre v. Wilks, 680. Laporte », Landry, 1163. Laprice v. Bowman, 172. V. Clifton, 775. Lamed v. Burlington, 1525, 1537. Lame ». Cloud, 15U6. LaRue n. Gylkison, 212. Lary v. Young, 1104. Lash V. Egerton, 1353. Latham v. CMark, 170. V. Smith, 136. Lathrop v. Commercial B'k, 866. Laub V. Paine, 1303. V. Rudd, 793. Laubach «. Pursell, 192. Laughlin v. Marshall, 56, 1703. Lawrence v. American Nat. B'k, 1166, 1369. 1). Dobyn, 644, 700. 11. Doughertv, 55. V. Fussell, 692. V. Langley, 1175. V. McCalrnont, 1755. 11. Miller, 1116. 11. N. Y., &c. R. R. Co., 1733. v. Ralston, 1147. Lawrence v. Stonington B'k, 339, 721. e. Tucker, 802. v. Wright, 361. Lawsona, Farmers' B'k, 993, 1039, 1041, 1043, 1044. ■». Lawson, 26. V. Lovejoy, 330, 234. V. Miller, 170, 173. «. Sayder, 1311. V. Sherwood, 1051. 11. Weston, 771, 1461, 1462,1503. Law's Ex. n. Sutherland, 301. Laxton ii. Peat, 1333. Lay V. Wissmau, 753, 758a, 758&, 778. Lazarus v. Cowie, 726, 786, 1287. Lazell V. Lazell, 1472, 1475, 1478, 1481. Lazier v. Nevin, 1275, 1276. Lea 11. Branch B'k, 663. Leach v. Buchanan, 497, 588, 1351. V. Hewitt, 1083, 1113, 1173. n. Nichols, 850. Leadbetter v. Farrow, 300, 311, 411. Lean ii. Lozardi, 83. V. Schutz, 243. Leary v. Miller, 217, 1107. Leathers v. Commercial Ins. Co., 1061. Leavenworth, &c. R. R. Co. v. Com'r of Douglas Co., 1548. Leavenworth, &c. R. R. Co. v. County Court, 1559. Leavitt n. Blatchford, 383. 11. Connecticut Peat Co. ,394, 685. ». Putnam, 610, 699, 724, 996, 1242. 11. Simes, 658, 663, 1051. Lebel v. Tucker, 906. Ledger v. Ewer, 201, 760. Ledlie «. Vroomim, 348. Ledwick v. McKim, 843, 1498. Lee V. Alexander, 1373. ». Chilicothe Branch B'k, 698. 11. Davis, 919. 11. Dick. 1755, 1785. V. Jilson, 1389, 1880. 11. Levi, 1319. v. Love, 1304. V. Muggridge, 349. n. Oppenheimer, 1289. 11. Pile, 719, 749. V. Rogers, 1525. V. Starbird, 1385. 11. Wheeler, 256. V. Wilcocks, 916, 1454. r. Zagury, 285. Lee B'k e. Spencer, 1109. Leech!). Hill, 713. Leeds v. Lancashire, 60, 79, 151. v. Vail, 681. Le Fevre v. Loyd, 312. Leffingwell v. Warren, 1535. Thenfereneee] TABLE OF CASES. \_are to the aecUons. Iv Lefflngwell «. White, 1103. Leftly ». Mills, 572, G16, 939, 1036,1208. 1466. Legg V. Legg, 254, 891. Legge ®. Thorpe, 1079. Leggett v. Jones, 54. «. Raymond, 1759. Legro «. Staples, 21, 53, 1644. Lehman v. Jones, 1144. Leith V. Elphiston, 1384. B'k Co, V. Walker's Trustees, 607 Leland ». Farnham, 728. V. Parriott, 701. Lemon v. Dean, 112. Lenheim v. Fay, 789. Lennig v. Kalston, 12, 869, 898, 1439. Lenox ». Cook, 1213. v. Leverett, 943, 1046. v. Prout, 1311. V. Roberts, 1036, 1039. Lent V. Padelford, 1785. Leonard v. Grary, 1104. V. Hastings, 1107. V. Leonard, 213, 1231. V. Mason, 78. ». Vredenburgh, 1764, 1767. «. Walker, 108. !). Wilson, 1400. Lerned v. Johnson, 303. Leroux v. Brown, 887. Le Roy v. Beard, 885. Lesler v. Rogers, 1377. Leslie «. Hastings, 497. Lester ■». Garland, 626. «. Given, 1634, 1637. Lett V. Morris, 23. Levy ». B'k U. S., 334, 533, 1655, 1656. v. Cadet, 374. V. Drew, 610. 11. Gadsby, 762. «. Peters, 1165, 1586, 1634. !). Pvne, .858. V. Wilson, 387. Lew V. Peers, 187. Lewin v. Brunette, 525. Lewis V. Bakewell, 1000. V. Brehme, 314, 315, 1156. v. Com. of Bourbon Co., 1550, 1553. V. Cosgrove, 193. 11. Davidson, 1260. V. Gompertz, 983, 983. V. Hanchman, 1335. V. Harvey, 710. V. Jones, 1289, 1330. V. Kramer, 552, 554, 1377. V. Lady Parker, 728. V. Lee, 243. V. McBlvin, 1565. V. M'Kee, 1745. Lewis V. Owen, 896. «. Pead, 311. v. Petayvin, 1471, 1478. V. Reilly, 370, 373, 083. V. Tipton, 88. V. Wilson, 32. Lewiston Falls B'k®. Leonard,963,1029. Libby «. Pierce, 997. Lick V. Faulkner, 1247. Lickbarrow ®. Mason, 803, 1634, 1727, 1730, 1735, 1744. Lieber ». Goodrich, 56. Liggett V. Weed, 454, 509. Light «. Kingsbury, 610, 996. •c. Lieninger, 1432. Lightbody ii. Ontario B'k, 737, 1676. Lightfoot V. Tenant, 200. Lightner n. Hill, 640. Lilley B. Miller, 1105, 1595, 1596. J). Petteway, 1149, 1152. Lime Rock B'k v. Macomber, 1190. F. & M. Ins. Co. ». Hewitt, 53. Lincoln «. Bassett, 1328. V. Pitch, 1217. B. Hinscy, 713. ■V. Smith, 311. & Kennebec B'k ». Hammatt, 658. «. Page, 658. Lindauer v. Fourth Nat. B'k, 339. Liudell «. Rokes, 183, 196. Lindenberger v. Beall, 1021, 1043, 1051. Lindo V. Unsworth, 628, 1041, 1043. Lindsay e. Price, 668. Lindsey v. McClelland, 1701, 1703, 1727. Lindus v. Bradwell, 253, 681, 1330. V. Melrose, 402. Linkous v. Hale, 962. Linnigo v. Ralston, 13. Linville ii. Savage, 8346. V. Welch, 1586. Litchfield «. Falconer, 80. B'k V. Peck, 781. Littauer «. Goldman, 733. Littell !). Hord, 764. Little V. Blunt, 1315. V. Derby, 1407. V. Duncan, 2.30. V. Nabb, 1764. V. Phoenix B'k, 56,1570,1587,1588, 1651. ». Stackford, 35. Littledale v. Mayberry, 954. Littlefield v. Hodge, 51. V. Spec, 183, 340, 250. Little Miami, &c. R. R. Co. v. Dodds, 1729. Little Rock ii. State B'k, 423. Livermore v. Blood, 734, 802. Ivi Thirefere,nces\ TABLE OF CASES. \_ariito thesictiom. Livingston v. Roosevelt, 488. Lizardi «. ColieD, 896. Llewellyn «. Winokwortb, 399. Lloyd ». Howard, 667. B. Keacli, 753, 759, 760, 763, 767. D. Lee, 340, 349, 350. V. McGarr, 961, 1055, 1439. V. Oliver, 133. v. Sandilands, 1648. ». Scott, 760. «. West Branch B'k, 433. Loan Ass'n s. Topeka, 1530, 1533. Lobdell V. Baker, 734, 735. «. MpMer, 1305. Lobey «. Barber, 1375. Lock !). Tulford, 736. Locke B. Huling, 581. ». Leonard Silk Co., 1198. Lockett's Case, 1345. Lockwood «. Comstock, 370, 373. ■K. Crawford, 654, 983, 996. Lodge «. Dicas, 1295, 1301. B. Phelps, 907. ». Spooner, 1454. Lodge of Free Masons «. Waddill, 384. Lodman ®. Crouch, 170. Logan V. Attix, 1360. - «. Plumer, 300. «. Smith, 834a, 834(!». Lohman ®. Crouch, 87, 170. Lomax v. Picot, 700. London S. C. ». Hagerstown S. B'k, 1706. Long B. Bailie, 1484. D. Colburn, 299. ». Crawford, 734. v. Moor, 1377. ■e. Sprull, 1369 B. Story, 170, 370. Longchamp ■». Denny, 1687. Lonsdale «. Brown, 9, 576. V. Lafayette B'k, 561, 897. Lootnis «. Fay, 1311. V. Maury, 799. ». Buck, 858. Loose «. Loose, 1153, 1157. Lord t). Appleton, 1016. ». Hall, 353, 377, 681. V. Ocean B'k, 793. Loring, ex parte, 1381. B. Gurney, 89. V. Hailing, 636. «. Sleineman, 346. Losee b. Dunkin, 608. Louisiana B'k ». Citizens' B'k, 1603, 1606. Ins. Co. ». Shamburgh, 1146. State B'k b. Buhler, 1074. ». Ellery, 998. ?'. Gaennie, 834. Louisiana State B'k ». Orleans Nav. Co., 1550, 1555. ». Rowell, 1013, 1014. D. U. S. B'k, 1680. Louisville, &c. R. R. v. Co. of Davidson, 1535a. Man. Co. i). Welsh, 1788. Loury's Adm. ». Western B'k, 899. Louviere «. Laubray, 1305. Love B. Nelson, 615. V. Wells, 69. Lovejoy «. Whipple, 65, 69. Loveland «. Shepherd, 1769, Lovell v. Everston, 1183, 1193, 1195. V. Martin, 1461. Lovett «. Cromwell, 1587, 1596. Low t>. Argrove, 1 394. «). Blodgett, 1199. «. Chifney, 814. ». Copestake, 1193. ». Howard, 1153, 1161. I'. Treadwell, 157. Lowe «. Beckwith, 1785. V. Bliss, 54. V. Murphy, 88. ». Peers, 196. Lowell v. Boston, 1533. i>. Daniels, 343. 4). Gage, 700, 1757. Lowery v. Murrell, 737, 1360, 1777. ». Scott, 1030, 1031. Lowes D. Mazarede, 753, 760, 763. Lowndes v. Anderson, 833, 1680. Lowry ». Adams, 1785. J). Steel, 1093. Loyd v. McCaffrey, 1644. Lubbering «. Kohlbrecher, 1373, 1416. Lucas ®. Dorrien, 1713. ». Haynes, 695, 1468. J). Ladew, 449, 617, 633. ». Pitney, 883, 385. ». San Francisco, 387. Ludlow V. Van Rensselaer, 913. Ludvrig d. Liglehart, 1331. Ludwick «. Hutsinger, 1458a. Luffs. Pope, 451, 1636. Luke «. Lyde, 10. LuUen ». Hare, 144. Lumley ». Musgrave, 1266. •0. Palmer, 504. Lundie v. Robertson, 1158. Lunt ». Adams, 603, 1310. Luqueer v. Prosser, 1779. Lycoming v. Union, 1556. Lyman v. B'k U. 8., 1373. Lynch «. Bragg, 1431. «. Kennedy, 859. v. Morse, 135. V. Reynolds, 1307. Thereftrmcul TABLE OF CASES. Inn to the eeotlons. Ivii lynde v. Winnebago Co., 1492, 1497, 1527, 1529, 1530, 1537, 1550. Lyon ». Ewing, 700, 824. V. Holt, 1324. ». Marshall, 100. V. Lyman, 1219. Lyons*. Miller, 284, 305, 731, 1358. Lysaght «. Bryant, 667, 987, 989. Lytle «. Wheeler, 172. Maas v. M. K. & T. R. R. Co., 1502. Maber d. Massias, 161. Mabie ». Johnson, 775. Macaltimer ». Croasdale, 193. Macara ii. "Watson, 1390. Macown v. Atchafalaya B'k, 966. Macferson ». Thoytes, 1219. Macgregor «. Dover, &c., R. R., 377. V. Rhodes, 1357. Macheath «. Haldimand, 445. Machell v. Kinuear, 1193. Mahieri). Succession of Henrie, 46. Matteson ». Elsworth, 1410. Mattison «. Marks, 43. MacKay ». Ramsey, 344. MaoKintosh «. Eliot, 1370. Madry ». Sulphur Springs, 861, M' Arthur ». Bloom, 245. McBean v. Morrison, 400. MoBride v. Farmers' B'k, 339, 344. McBrown «. Corporation of Lebanon, 101. McCabe v. Raney, 859. McCall J). Clayton, 404. ». Taylor, 92. McCann ». Lewis, 812. McOarty ». Roots, 703. McCoughey «. Smith, 1388. McCaughy «. Berg, 678. McCausland ». Rulston, 194. McCh«rd ». Ford, 56. McClae ». Sutherland, 94, 361. McClane «. Fitch, 581, 588, 1043. McClaraghan v. Hines, 80. McClellan «. Reynolds, 418. McClintock ». Cummings, 815. McOluny ». Jackson, 1260. McClure v. Bennett, 306, 307, 406. ». Township of Oxford, 1498, 1503, 1538, 1544, 1550. McComb «. Kittridge, 1317. ». Thompson, 713. McComber v. Dunham, 1458ai. McConnell «. Hector, 316. v. Hodsan, 775. ■V. McConnell, 24. ■». Murray, 24. V. Thomas, 1189. McCord ». Ford, 1 245. McCormack v. Trotter, 56. McCoy v. "W'ashington Co., 1491, 1726. McCracken v. German Fire Ins. Co., 834a. V. San Francisco, 318. McCrameri). Thompson, 855, 1387. McCrary d. Caskey, 76. McCrillis jj. How, 225. M'Crummen v. M'Crummen, 1005. McCullis !). Bartlett, 212. McCulloch «. Hoffman, 174. McCullough 11. Cook, 643. v. Moss, 387, 389, 393. «. State of Maryland, 120. McCune «. Belt, 703, 980. McCurbin v. TurnbuU, 1378. McDade ®. Mead, 1424. McDoal ». Yeomans, 1769. McDonald ». Bailey, 899, 1099. J). Lee, 633. ». Magruder, 703, 1204. v. Muscatine Nat. B'k, 850. I). Rankin, 267. McDowall v. Chambers, 74. v. Cook, 531. ■0. Goldsmith, 728. McDuffie v. Dame, 1437. McEldery v. Chapman, 262. McElvain v. Mudd, 127, 172, 173. McElwee ®. Collins, 765. McEvers ». Mason, 502, 550, 552. McEwans. Smith, 1712. McEwin 1). Gordon, 1390. McFarlandB. Pico, 590, 963, 983, 1212. McGavock «. Puryear, 200. M'Gee v. Prouty, 1336. McGee v. Connor, 710. I'. Riddlesgarber, 748. McGoon «. Shirk, 1247. McGovern ». Hosenback, 125. McGrath v. Clark, 142, 1385, 1406, 1408. McGraw «, Gentry, 112. McGregory «. McGregory, 1185. McGruder «. B'k of Washington, 571, 635, 1145, 1146. McGuire «. Bosworth, 713. D. Gadsby, 1260, 1266. McGuirk ». Cummins, 90. McHenry v. Duffield, 307. «. Hazard, 727. v. Ridgely, 687. McHugh «. County of Schuylkill, 1352. Mclntire ®. Oliver, 374. Mcintosh «. Haydon, 672, 1379. Mclntyre v. Kennedy, 1260. J) Preston, 385. McKee b. Varninles, 1492. M'Kenny v. Waller, 1311. McKenzie !). Durant, 1209. V. Hunt, 1437. V. Scott, 314. Iviii T7i6 references] TABLE OF CASES. [areio t!ie sectione. ilclTesson v. Stanberry, 815. JIcKewer v. Kii-kland, 611, 996. M'Kinnell 11. Robinson, 200. McKinney v. Crawford, 611, 996. ». Whipple, 046. McKleroy v. Soutberu B'k of Ky., 1363. McKnight v. Knisley, 832. M'Lachlan v. Evans, 1687. McLaren v. Hall, 1360. V. Watson's Ex., 1774, 1775, 1777. McLean «. Hertzog, 1483. McLemore v. Powell, 1316. M'Lugban v. Bovard, 1360. MoMarchey v. Robinson, 634, 936. McMasters v. Reed, 383. McMean v. Little, 1085. McMenomy v. Ferrers, 31. McMicken v. Beauchamp, 1418. M'Millan «. M'Neil, 875. McMillen v. County Judge, 1535, 1560. McMinn v. Owen, 81. V. Richmonds, 335. McMurtie «. .Tones, 1019. McNair v. Gilbert, 1473. McNairy ». Bell, 643. McNaniara ». Condon, 205. MoNeal v. McCnmley, 1260. V. Wyatt, 995. McNealy v. Gregory, 172, 173. M'Neilage ». Holloway, 254,1184. M'Neilly «. Patchin, 1340. McNinch «. Ramsey, 49. McPeters r. Philips, 14.54. McRae v. Rhodes, 1074. McRaven v. Crislen, 1403. JlcSherry o. Brooks, 724. "McVaughters t: Elder, 261. McYean v. Scott, 13^7, 1388. McVeigh v. Allen, 1033. i\ B'k of Old Bominion, 90, 218,1048,1060,1062,1070, 1085. V. Cautrell, 348. McWirt «. McKee, 721. Mackay v. Holland, 859. Macleod 1). Snee, 51, 108. Maclin v. Critcher, 363. Maddos v. Graham, 1489 Madison, &c. Plankr. Co. v. Watertown Plankroad Co., 384,386. R. R. Co. 11. Norwich Sav. Soc'y, 386. Magee ». Badger, 775, 814. Magill V. Manson, 170. V. Merrie, 350. Magoun v. Walker, 963, 969. Magruder r. B'k of Georgetown, 1177. 1). Peter, 1281. c. Union B'k, 591,1175,1179. Mahaiwe B'k v. Douglass, 1878, 1387. Mahan v. Sherman, 80. Maher v. Brown, 1644. V. Overton, 411. Mahier v. LeBlanc, 630. Mahone ®. Central B'k, 142. Mahoney «. Asblin, 8. Mahorner «. Hooe, 866. Mahurion v. Pearson, 1431. Maiden ». Webster, 94. Maillard i). Duke of Argyle, 1367. Maiuer v. Spurlock, 979. Mainwaring v. Newman, 354. Maitland ». Citizens' Nat. B'k, 775, 831, 833. Major D. Symmes, 848. Makepeace «. Harvard College, 154. «. Moore, 265. Malbon i>. Southard, 267, 680. Maiden B'k ii. Baldwin, 649. Male «. Roberts, 874, 892. Mallet «. Thompson, 1296, 1333, 1334. Malone v. Keener, 1763. Maloney v. Stephens, 233. Mammon v. Hartman, 713. Manchester B'k J). Fellows, 1003, 1005, 1039,1045,1212. Mauchc't f. Cason, 1398. Mandeville «. Union B'k, 107. v. Welch, 15, 17, 18, 21, 33, 450, 451, 1636. Manegold v. Dulan, 1183. Manhattan Ins. Co. v. Warwick, 823. Maniott v. JRoberts, 1194. Manley v. Boycott, 720,1336,1337,1358. V. Geagan, 566. Mann v. Chandler, 403, 405. ■0. King, 274. r. Lant, 167. V. Moors, 1023, 1089. V. Sutton, 33. Manning v. Hayes, 369. «. JlcClure, 829, 830. Manrew v. Durham, 1759. Mansfield v. Corbin, 185. Manson v. Felton, 259. Manufacturers' Nat. B'k v. Barnes, 288. &c., B'k V. Winship, 363. Mare v. Charles, 413. Margetson v. Aitken, 1167. Marine B'k v. Clements, 394. V. Fulton B'k, 335, 334. V. Wright, 1734, 1748. & Fire Ins. B'k v. Jauncy, 20. Nat. B'k 41. Nat. City B'k, 1661. Marion v. Logansport R. R. Co., 425. B'k «. Smith, 657. itc. R.R. Co. V. Dillon, 428. J). Hodge, 425,483. i>. McCullum, 758. Vie references] TABLE OF CASES. [are to the sections. lix Marion IST. B'k v. Nat. City B'k, 540. Markham i). Hazen, 487. Markle ». Hatfield, 731. Marr ®. Jotiiasoii, 987, 1037. Marrett v. Equitable Ins. Co., 53. Marrigan ii. Page, 36, 38. Marryatts v. White, 1353. Marsh i>. Fulton Co., 1538, 1544. V. Gold, 358. V. Low, 174. V. Marshall, 783. V. Maxwell, 1053. V. Newell, 1199, 1201. V. Pedder, 740, 1371. V. Small, 775. V. Ward, 94. Marshall v. Bait. & O. R. R. Co., 188. ■0. Clary, 513. V. Gougler, 1391. V. Marshall, 1260. V. Mitchell, 1104, 1110, 1133, 1135. ». Russell, 69. V. Ruttin, 243. County ». Cook, 1551. Marson v. Pett, 1378. V. Pritchard, 1030, 1124. Marston «. Allen, 667, 748, 1468. Martendale v. Follett, 1386, 1411. Martin v. Bacon, 507. ». B'k U. S., 1479, 1695, 1696. V. Boure, 6. V. Boyd, 713. V. Chauntry, 60. -0. Coles, 1748. B. Franklin, 1454. V. IngersoU, 993, 1041, 1043. V. Kirk, 370, 373. V. Martin, 891, 892, 1236. V. Mayo, 331. ». Morgan, 1596, 1630. ». Pennock, 1269. V. Smylee, 851. V. Trowbridge, 1437. ». Wade, 196. V. Walton, 373. V. Winslow, 607, 609,1147, 1155. Martineau v. McCollum, 834. Martoa ■b. Cole, 713, 721. Marvin v. McCallum, 63, 1190. Marvine v. Hymers, 385. Marzetti «. Williams, 479. Mason v. BarfE, 499. V. Bradley, 1887. !). Burton, 679. V. Dousay, 552, 867, 888. V. Franklin, 640, 651. V. Hunt, 509, 551. V. Hyde, 67. V. Morgan, 240, 254, 681. Mason v. Noonan, 728. V. Peters, 1327. ». Pritchard, 640, 1030, 1124, 1755, 1772. «. Race, 1687. V. Rumsey, 362, 488. «. Waite, 1469, 1687. Massachusetts B'k v. Oliver, 1000. Massey v. Turner, 713. Massie v. Belford, 46. Massman v. Holcher, 855. Maspero r. Pedesclaux, 1000, 1001. Master c.Miller, 23, 1373, 1376, 1379, 1410.. Masters v. Ibberson, 803. Mather ». Lord Maidstone, 1853, 1371. Mathews v. Allen, 1147. V. Haughton, 55. V. Haydon, 588. V. Poytheress, 775, 814, 1462,. 1463. V. Redwine, 102. V. Rutherford, 758a. Mathewson v. Strafford, 1000. Mathey v. Galley, 1096. Matlock V. Livingston, 199. Matteson ». Ellsworth, 1413. V. Moulton, 500. Matthews v. Dare, 1275. Mauldin ». Branch B'k, 366, 753. Maule V. Crawford, 104. MaulU. Vaughn, 186. : Maurain ». BuUus, 1 755. Maurin v. Lambert, 1230. Maury v. Coleman, 860. «. Rogers, 640, 1736. Maux Ferry Gravel R. Co. v. Branegan,. 424. Mawson v. Blane, 286. Maxwell v. Vansant, 728. May V. Boissean, 1109, 1138, 1130, 1140,. 1141, 1184. V. Campbell, 751. 1). Chapman, 795. V. Coffin, 1144, 1170, 1173. ■». Cooper, 616. V. Hewitt, 303. V. Kelly, 295, 362, 485. ■0. Miller, 92. ®. Quimby, 833. Mayberry v. Boynton, 1788. Mayer v. Isaac, 1755, 1770, 1773. V. Jadis, 1196, 1197. Mayhew ». Boyd, 1311. D. Crickett, 1311, 1821, 1340,. 1789. 11. Prince, 311. Maykin i>. Kirby, 747. Maynard i). Fellows, 361. ». Johnson, 135. Mayo V. Chenoweth, 102. Tlie references I] TABLE OF CASES. lare to m sections. Mayor of Alexandria!). Patten, 1350,1251. t>. Esohfeack, 440. ®. Hammond, 138. V. Johnson, 1475, 1479, 1695. V. Lord, 1537, 1543. &c. V. Potomac Ins. Co., 1493, 1506, 1510. 1). Ray, 430. Mays ». CalHson, 670. Meacher v. Fort, 538, 1354, 1356. Meachum «. Dow, 196. Mead v. Caswell, 1590. ». Engs, 331, 993. V. Merchant's B'k, 134, 390, 391, 1610. V. Munson, 850. V. Small, 1343. V. Young, 693, 1 345. Header ». Scott, 1428. Meadow v. Bird, 188. Means v. Swormstedt, 408. Hears v. Graham, 86, 403, 406. V. Waples, 1731, 1734. Mechanics' Ass'n v. Ferguson, 834. B'k 1). B'k of Columbia, 399, 393, 398, 419. D. Earp, 313, 344. ». Griswold, 1133, 1170. V. Livingston, 490. e. Merchants' B'k, 598. V. N. Y. & K H. R. R. Co.,373, 1503, 1708. V. Straitor, 99. ■e. Stratton, 1571. V. Townsend, 862. Mechanics' &c. B'k «. Barnett, 833. v. Crow, 183a, 814. V. Farmers' &c.B'k, 1731. V. Schaumburg, 383, V. Schuyler, 83, 630. Mechanics' B'k Asso. ». Place, 1017. Mecorney v. Stanley, 715. Medbury i). Watrous, 229. Medenhall v. Davis, 719. Medlin v. Platte, &c., 1373. Medway Cotton Man. ij. Adams, 399. Meech v. Smith, 1763. Meed ». Keller, 383. Meeker v. Jackson, 1478, 1480. Meggadow e. Holt, 1170. Megginson ». Harper, 99. Meggot ('. Mills, 1352. MehlbergB. Fisher, 1360, 1276. Meiswinkler v. Jung, 1317. Melan e. Fitzjames, 886. Melauotte v. Teasdale, 40. Melledge ». Boston Iron Co., 399. Mellersh v. Rippen, 978. Mellish ». Rawdon, 465, 473, 613. Mellish 1). Simeon, 1448. Melvill v. Glendinning, 1331. V. Hayden, 1770. Mendez v. Carreroon, 575, 1339, 1330. Mendizabel v. Machado, 509. Menifee «. Clark, 1319. Menkens ■». Heringhi, 252, 354. Mentross v. Clark, 790. Mercantile B'k ii. Cox, 363. Mercer ii. Lancaster, 1033. Co. ■». Hacket, 10,389,1495,1496, 1.500, 1501, 1530, 1537, 1541. «. Hubbard,1511,1512,1545, 1550. V. Pittsburg, &c. R. R. Co., 1585. Merchants' B'k ®. Birch, 1001. V. Central B'k, 301, 393. V. Easley, 1084. V. Elderkin, 656. V. Evans, 643. «. Griswold, 551. V. Marine B'k, 395. «. Spicer, 74, 688, 1567, 1586, 1587, 1590, 1652. V. State B'k, 389, 390, 391,393,413,1536, 1573, IfiOl, 1603, 1608, 1610. Nat. B'k V. Comstock, 177, 393, 781. V. New IBrunswick Sav.Inst.1653. V. Stafford NatB'k, 837. Merdock v. Aradh, 719. Merle ii. Wells, 1773. Merrett v. Duncan, 509, 781a, 813. Merriam ». Moody's Ex., 1535. «. Rockwood, 854. V. Rundlett, 800, 1879. «. Walcott, 284, 731. Merrick «. Boury, 1360, 1368, 1410. V. Butler, 734. Merrill v. Duncan, 775. 11. Fleming, 196. Merritt «. Anderson, 1643. V. Benton, 933. ■0. Todd, 609, 1703. Mertens ii. Withington, 1354. Merz «. Kaiser. 576, 1017. Messenger v. Southey, 979, 983. Metcalf i). Douglas, 1590. Metcalfe ». Richardson, 972, 985, 1158, 1160. Meyer v. City of Muscatine, 1500, 1523, 1533, 1587, 1540, 1547. ■». Haworth, 240. Thereferencea\ TABLE OF CASES. [are to the sections. 1x1 Meyer i\ Hibscher, 639, 640, 1180. V. Huneke, 1410, 1413. Meyers v. Staudart, 515. Meyerstein v. Barber, 1731, 1737. Michigan B'k v. Eldred, 104, 367, 368, 369, 843. Ins. Co. ■». Leavenworth, 83, • 142, 367, 599. State B'k v. Leavenworth, 563, 831,1339,1330. V. Pecks, 501. Mickles ». Colvin, 187. Middlesex v. Thomas, 1360, 1376. Middleton v. Allegheny Co., 1537. V. Pollock, 1438. B'k B. Morris, 1586, 1593. Miers v. Brown, 973, 985, 1175. Milburn v. Guyther, 1435. Miles V. Hall, 1019. i>. Williams, 681. Millaudon v. Amons, 1305. Miller v. Austen, 1703. v. Board of Education, 319. i\ Butler, 497. V. Consolidated B'k, 369. V. Delamater, 253, 681. V. Fichaus, 504, 797. 11. Pinley, 214, 1389. i\ Fitchin, 856. ». Gilleland, 1377. v. Hackley, 9, 960, 961,1031,1054, 1056, 1110, 1163. ». Helm, 365. V. Hughes, 368. V. Larman, 135. V. Lumsden, 1360, 1368, 1375. v. Miller, 24. «. Morrow, 135. ». Ord, '748. ». Race, 771, 1503, 1673, 1687. «. Ray, 1520. V. Reed, 1390. V. Reigne, 361. V. Rutland, &c. R. R. Co., 1491, 1492. «. Stem, 1319. V. Thompson, 139, 481, 482. V. Tiffany, 933, 938. V. Trevillian, 1250. ». Weeks, 130. V. White, 81. V. Williamson, 235. Milliken v. Brown, 1290. Mills V. B'k of U. S. 615, 633, 633, 661, 663, 979, 983. V. Barber, 165, 177, 814. V. Barney, 1703, 1703. V. Beard, 1098. ». Charleston, 1556, 1563. ». Fowlkes, 1253. Mills «. Gleason, 1532, 1529, 1530. B. Kuykendale, 50. V. Mills, 188. 11. Porter, 78 la. V. Rense, 1100. V. Town of Jefferson, 1500, 1513,. 1514. Millspaugb v. Putnam, 34. Milne v. Graham, 903. Milner v. Gray, 96. Milnes v. Duncan, 1330. Mims 11. Macon, &c. R. R. Co., 1381. Minard v. Mead, 253. Minell v. Read, 800. Miner v. Hoyt, 1437. Mineral Point R. R. Co. ». Barron, 890. MinetB. Gilson, 136, 1571. Minor n. Mechanics' B'k of Alexandria, 304, 687. ®. Minor, 1453. V. Rogers, 34. Minot 11. Curtis, 399. Minturn v. Fislier, 1103, 1106, 1574, 1576, 1634. Miranda ii. City B'k, 1106. Miser v. Trooinger, 999, 1074. Misher v. Carpenter, 672. Missouri Loan B'k v. Gamer, 1289. Mitchell V. Baring, 508, 533, 685, 651, 653, 935. V. Burlington, 1533, 1535. n. Byrne, 63. V. Cross, 1039, 1041, 1045. V. De Grand, 45.4, 589, 619, 636. 11. Hewitt, 56. n. Mitchell, 135. V. Rome R. R. Co., 38, 386. 11. Sellman, 1438. Mitchinson v. Hewson, 258. Mitford v. Walcot, 491, 539, 547. Mix v. Ely, 1383. V. Madison Ins. Co., 934. Moakley ii. Riggs, 1769. Mobley v. Clark, 434, 1083. 11. Ryan, 738. Moers v. City of Reading, 1533. Moffat 11. Edwards, 41. V. Van Milligan, 354. Moffett n. Bickle, 674. Mogadara v. Holt, 1170. Moge 11. Hemdon, 1416. Moggridge v. Jones, 303. Mohawk B'k v. Broderick, 1578, 1587, 1594, 1607, 1651. v. Corey, 790, 793. Moires «. Bird, 707, 1760, 1765. Moise v. Chapman, 1689. Molbin v. Southard, 685. Moline, ex parte, 1003, 1036, 1335. Tiurejii-enclii TABLE OF CASES. [«« . Cowan, 1770. Morrill i). Brown, 1672. Morris?). Bethel, 1353. «. Cleasley, 314. ®. Faurot, 722. t). Husson, 1023. v. Lee, 35. V. McMorris, 125. B. Summeril, 330. «. White, 834. B'king <& Can. Co. n. Fislier,1500. xi. Lewis,1496, 15i'3, 1517. Morrison ». Bailey,1568,1569,1574,1576, 1587, 1590, 1600, 1638. B. Buchanan, 464, 492. V. Hartmau, 1311. V. Lovell, 219, 733. e. Perry, 370. x. Smith, 1401. V. Taylor, 291. Morrow p. Wbitesides, 258. Morse B. Clayton, 264, 265. ». Green, 299. «. Huntington, 1322. x. Wheeler, 235. Mortee ». Edwards, 49. Morton v. Burn, 827. D. Naylor, 21, 451. v. Preston, 706. •B. Rogers, 177. ». Westcott, 1034. Moseley v. Hanford, 80. Mosely v, Graydon, 266. Moses v. Comstock, 852. «. Ela, 1131. v. Franklin B'k, 1567, 1600, 1636. «. Trice, 205, 1228, 1266, 1478, 1482. Moaher ■». Allen, 1197. V. Indian School Dist. 1542,1563. Moss i;. Adams, 1252. v. Averill, 383. XI. Livingston, 413. «. Oakley, 382, 428. Mossop 11. Eadon, 1475, 1479, 1484. Mott ». Hicks, 303, 382, 383, 408, 700. Moule J). Brown, 832, 1593, 1598. Mountford v. Harper, 1648. Mountstephen v. Broake, 98. Mt. Sterling Turnpike Co. v. Looney,395. The references] TABLE OF CASES. [twetotheseaUons. Ixiii M. & F. B'k V. F. M. B'k, 1734. Mt. Vernon B'k v. Holden, 1054. Mower v. Peabody, 1731. Mox ». State B'k, 901. Moxon V. Pulling, 689. Mudd 0. Reeves, 1675. Mudger J). Bullock. 35, 1353. Mudgett V. Day, 335. Muhling «. Sattler, 130. Muilman ». D'Eguino. 466, 467, 469, 471, 1037, 1046. Muir «. Crawford, 1333. e. Demaree, 1388. D. Rand, 1687. Muirheadu. Kirkpatrick, 196, 1311. Muldon !). Whitlock, 1367, 1268, 1300. Muldrow V. Caldwell, 130, 663, 1397. Mulli). Van Frees, 186. Mullen B. Morris, 898, 901, 930, 945. MuUer v. Pondin, 67. Mullick V. Radakissen, 465, 466, 470, 473, 474, 475. Mumford ®. Hawkins, 398. Munoy Borough School Dist. e. Com- monwealth, 605, 613. Hunger v. Shannon^ 50. Munni). Baldwin, 1021. V. Birch, 1571, 1638. V. Commissioners' Co., 383, 751, 760, 766. V. McDonald, 834. Munroe v. Bordier, 175, 178. Munro v. King, 81. Murchie ■». Macfarlane, 1373. Murdook v. Lee, 1377. Mure, ex parte, 1311. Murphy i). Keyes, 174. Murray v. Beckwith, 775. -0. Burling, 1483. V. East India Co., 364, 390. V. Glasse, 341. ■B. Judah,673, 1081, 1355, 1586, 1587, 1596, 1630, 1653. V. Lardner, 681, 775, 776, 814, 1469, 1500, 1503. V. Pate, 1687. V. Todd, 747. V. Township of Oswego, 1542, 1596. V. Snow, 1289. Murrell v. Jones, 170. Murrey ». Jones, 748, 834. Murrill ii. Handy, 86. Muscatine v. Sterneman, 125. Musgrave d. Drake, 369. Musselman ». Logansport, 1564. ». Oakes, 103. Mussey v. Eagle B'k, 1610. «. Rayner, 1755, 1785. Musson V Lake, 654, 896, 898,953,970, 983. Mutual B'k I). Rotge, 1604. Muzzy V. Knight, 156. Myatt «. Bell, 37-^, 1260, 1301. Myers v. Byington, 1389. V. Friend, 441, 668, 741. V. Huggins, 373. «. Nell, 1401. V. Willis, 1329. V. York, &c. R. R. Co., 747. Myrick V. Hasey, 1782. Nagel V. Mignot, 1471, 1478. Nagle V. Homer, 508. Naglee v. Lyman, 828. Nailor v. Bowie, 654, 969. Nance v. Lary, 845. Napier v. Elam, 827. 1). Schneider, 1449. Narragansett B'k v. Atlantic Silk Co., 388. Nash 1). Brown, 181. V. Fugate, 856. V. Harrington, 611, 1152, 1170, 1172. «. Hodgson, 1352. V. Nash, 357. Nashville B'k v. Bennett, 1005. Nathan r. Giles, 1730. Nat. B'k «. City of lola; 1520. 13. Fassett, 333. V. Norton, 370, 378. V. Smoot, 869. V. Tappan, 1370. V. Texas, 724. of Bellefonte v. McManigle, 287. Commerce v. Nat. M. B. Ass'n, 1166, 1861, 1369, 1654. Fort Edward i\ Washing- ton County Nat. B'k, 1698, 1703. Michigan v. Green, 767, 899. N. A. D. Bangs, 1361,1367, 1369, 1657. ». Kirby, 1506. Pittsburg ». Wheeler, 674. Nat. Exchange B'k v. Hartford R. R. Co., 1489, 1500, 1509, 1510, 1513. Gold B'k v. McDonald, 1633, 1633. Mechanics' B'k ». Nat. B'k, 284. Newark B'k Co. v. Second Nat. B'k, 472. Park B'k v. Ninth Nat. B'k, 1361, 1654, 1661. Pemberton B'k v. Longee, 713. V. Porter, 769. Nave V. Richardson, 588, 953. Ixiv Th,T,f,rmc,i\ TABLE OF CASES. 3 to the sections. Naylor «. Moody, 1317. Nazros. Fuller, 1378, 1379. Neal V. Erving, 2'JG, 299. V. Wood, 1097. V. Wyatt, 992. Neale v. Turtou, 354. Neate v. Harting, 1372«. N. E. B'k V. Lewis, 1209, 1312. Nebecker «. Catsingev, 852. Needles ». Needles, 254. Neff's Appeal, 1311. Neflf ('. Horner, 1385. Neiflfer v. B'k of Knoxville, 393. Nelson v. Cowing, 145. i\ Dubois, 1765, 1767. V. First Nat. B'k,561,1606,1799. 1). Fotterall, 457, 586, 588, 603, 945, 955, 959, 964. V. Whittall, 113. V. Woodruff, 1729. Nesmith v. Drum, 1644. Nevins v. B'k of Lansingburgli, 1016, 1783. V. De Grand, 1415. New 1}. Swain, 1280. Newberry ii. Armstrong, 1764. V. Trowbridge, 1147, 1163, 1165. Newcomb v. Raynor, 1303. Newell D. Mayberry, 1410. V. Salmons, 1431. Newliall V. Clark, 517. V. Dunlap, 311, 411. N. H. Savings B'k «. Colcord, 1324. New Haven Co. B'k v. Mitchell, 1053, 1056. New Hope D. & B. Co. v. Perry, 646, 1680. New Jersey b. Wilson, 446. Newman v. Frost, 78, 187. V. Gozo, 1450. B. Kerson, 894. V. Williams, 750, 763, 767. New Orleans, &c. ®. Montgomery, 728, 784, 834a. B'k r. Harper, 1153. Canal v. Templeton, 728. V. Clark, 1563. Newsom v. Thornton, 1731, 1748. Newton ». Jackson, 157. V. Kennedy, 1458''(. New York B'k ». Gibson, 1636. Firemen's Ins. Co. ■». Ely, 384. M. Iron Works®. Smith, 827. & N. H. E. R. Co. 11. Schuyler, 390, 391, 1611. &c. Co. V. Meyer, 1086. V. Selma Sav. B'k, 998. New York, &c. R. R. Co. v. Hawks, 1674. & Va. State B'k v. Gilson, 19. Niagara B'k v. Roosevelt, 1689. Dist. B'k v. Fairman, 515, 1380, 1381, 1689. Mchol 1). Bate, 143, 1266. 11. Mayor of Nashville, 1523. Nicholas v. Cheairs, 1399. Nicholls V. Diamond, 413, 488. ■0. Lefevre, 1 730. Nichol's Ex. V. Porter, 903. Nichols v. Blackmore, 466, 473, 474.488. V. Cross, 1187. v. Goldsmith, 636, 656, 1057. V. Norris, 1323, 1335. V. Pearson, 750, 759, 760, 767. T. Pool, 644. V. Rodgers, 884. V. State B'k, 383. V. Webb, 945, 967, 968, 1057. Nicholson v. Gouthit, 1171, 1173. V. Paget, 1755, 1770. V. Patton, 775. V. Revill, 1390, 1394, 1395. V. Sedgwick, 1698. Nickerson v. Sheldon, 63. Nicolay v. Pritschle, 1193. Nightingale v. Meginnis, 1317. 1). Withington, 227, 683. Niniick v. Martin, 617. Nixon V. English, 1437. V. Palmer, 391. Noble V. MoClintock, 366. V. Walker, 753, 763, 766. Nobles 11. Bates, 1 96. Noe V. Christie, 23. V. Hodges, 81. Noel V. Murray, 1262, 1264. Norman v. Cole, 188. Norris v. Aylette, 1273. !). Badger, 576, 1227. V. Crnmmey, 1321. V. Cummings, 1318. V. Despard, 713, 1060, 1070, 1596, 1600. V. Langley, 808. V. Soloman, 73. Northam ii. Latouche, 808. Northampton B'k v. Pepoon, 394. North B'k v. Abbott, 650, 658, 1048. British Ins. Co. v. Loyd, 1309. Penn. R. R. Co. «. Adams, 1513, 1514, 1515. River B'k ii. Aymar, 380, 283, 284. Northrop v. Sanborn, 86, 1580. X-^orthumberland Co. B'k v. Eger, 1776. Norton v. Eastman, 1785. V. Lewis, 616, 1048. Thinfermcul TABLE OF OASES. {.ontotlueecUmi,. IxV Norton ». Pickering, 1077. v. Eose, 5. V. Sevmour, 361, 1013. V. Waite, 833. Nott D. Beard, 953. Norvell v. Hudgins, 789, 795. Norwich B'k ». Hyde. 86. Town Co., in re, 1616. Noxon », De Wolf, 736. Noyes ». Price, 1687. Nunez «. Dautel, 45. Nunnemaker u. Lanier, 1590. Nurre «. Cliittenden, 710, 713. Oakey », Beauvais, 635. V. Wilcox, 1379. Oakley v. Ooddeen, 799. Oaks v. Weller, 1785. Oaste ®. Taylor, 6. Obbard v. Betham, 301. Ober V. Gallego, 834a. ». (Jeodrich, 670, 738, 1199. O'Brien v. Gilciirist, 1739. v. Smith, 1590. O'Callaghan v. Thomond, 883. Ocean Nat. Bank «. Carll, 1057. «. Fant, 833. B.Williams, 581, 587. Ocean Tow Boat Co. «. Ship Ophelia, 1633. O'Connell ®. McQueen, 1248. Odam.u. Beard, 719. Oddie «. Nat. City B'k, 1031. Odiorne ». Sargent, 155. ■e. Woodman, 735, 746. Ogden v. Astor, 350. ». Conley, l049. ». Dobbin, 656, 991, 993. V. Marchand, 333, 769. «. Saunders, 614, 616, 671, 673, 874. Ogilby e. Wallace, 1185. Ogle «. Graham, 1384. Oglesby v. Steamboat Co., 1148. Oglivie ». Moss, 367. O'Hara*. Haas, 1343. Ohio Ins. Co. ». Edmonson, 866. Ohio Life & Trust Co. ». Debolt, 1535. Okie ». Spencer, 1339. Olcott V. Rathbone, 1195, 1366, 1633. «. Supervisors, 1531, 1533. Olendorf ». Swartz, 1110. Oliver ». Andros, 673. V. B'k of Tenn., 1074, 1076. Olmstead v. Winst^ad, 1680. Olney v. Cbadsey, 395. Omohundro ». Crump, 56, 87. Onondaga Co. B'k «. Bates, 580, 584. ®. DePuy, 357, 936. Ontario B'k v. Worthington, 827, 984. Vol. 1.— E Ord «. Portal, 1193. Orear d. McDonald, 1076, 1078, 1082, Oridge «. Sherborne, 599, 617, 631. Oriental B'k v. Blake, 1000, 1177, 1179. Orleans v. Wliittemore, 1180. Ormsby ?). Kendall, 306. Orono B'k v. Wood, 963. Orr V. Lacey, 1317. 11. Magginnis, 454, 936, 940, 943, 1081. Orrick ». Colston, 144, 147, 666, 709, 713, 848. Orvis V. Kimball, 331. O.sbom v, Hawley, 61. V. Moncure, 1309. I'. Nicholson, 170, 173. V. Bobbins, 1306. Osgood »;. Pearson, 103. Osmond v. Fitzroy, 311. Oswego B'k «. Knower, 1107. Other ». Iveson, 1398. Otis v. Galium, 734a. «. Hussey, 1149. Otsego Co. B'k ®. Warren, 955, 1140. Otto«. Bedden, 1118. Oulds «. Harrison, 735, 1436. Outhouse D. Outhouse, 1469. Outhwaite ». Luntley, 1376, 1377. Overman «. Hoboken City B'k, 491, 1619. Overseer of the Poor ». Bank of Va., 336. Overton v. Bolton, 868, 1458a. ■0. Hardin, 750, 751, 753. V. Tyler, 1, 61. Owen B. Barrow, 1330. 11. Branch B'k, 1725. «. Homan, 1322. ». Iglanor, 513, 614. V. Lavine, 514. V. Moody, 883. v. Van Uster, 488, 489. Owens «. Dickinson, 248. Owenson ii. Morse, 1373, 1673, 1679. Owings V. Arnot, 1376. B. Speed, 388. Oxford B'k ®. Haynes, 1787, 1788. 11. Lewis, 1338. Iron Co. V. Spradley, 300. Pace V. Robertson, 1343. Pacific B'k ®. Mitchell, 1331. Pack i). Thomas, 81, 1586. Padkard v. Lyon, 637, 1115. n. Nye, 406. D. Richardson, 1764. Packwood v. Grindley, 801. Pagan v. Wylie, 1409. Page V. Gilbert, 983. v. Morrell, 143. i>. Newman, 112. ». Page, 898, 1478. Ixvi Tli,ereferences\ TABLE OF CASES. [are to the sections. Page V. Prentice, 1031. 1). Warner, 1460. ■v. Webster, 649, 650. Paige «. Stone, 294, 305. Pain 11. Packaid, 1389. Paine 1>. Noelke, 718. Palfrey ». Baker, 1274. Palmer ii. Dodge, 870, 378. 11. Grant, 94, 1780. i>. Hughes, 643. e. Hummer, 44. 11. Largent, 850. V. Logan, 1471. 11. Marshall, 769. V. Minor, 199. 11. Nassau B'k, 698, 812, 1191. 11. Pratt, 41. V. Eichards, 827. 11. Stephens, 74, 688. 1!. Ward, 47. V. Whitney, 812. V. Yarrington, 867. Papple ». Day, 185. Parcel v. Barnes, 422. Pardee v. Fish, 56, 1702, 1703, 1706. Parham ii: Murphee, 1197. Parish v. Stone, 25, 201. Park V. Ross, 443. Park B'k ii. Watson, 827. Parke v. Smith, 1217. Parker v. Burgess, 368. V. Carter, 179. V. City of Syracuse, 21. V. Cousins, 870,878,1300. V. Davis, 1248. 11. Gordon, 464, 1088. 11. Greele, 561,601. v. Leigh, 545. 11. Macomber, 370, 372, 373, 688. V. Maraton, 24. V. Nations, 1305. Parkersburg Nat. B'k ». Als, 1653. Parkhurst v. Vail, 718, 1316. Parkin v. Carruthers, 853. 11. Moon, 728. Parks 11. Duke, 82. 11. Ingram, 1335. Parmelee v. Lawrence, 1565. Parnell v. Price, 1319. Parr ii. Jewell, 726. 11. Eliason, 760. Parsons ii. Alexander, 197. 11. Phipps, 1217. Partridge ». Badger, 382, 394. V. B'k of England, 1570,1651, 1710. V. Colby, 94, 1388. 11. Court, 268 ». DaTis, 688,1781. v. Stockton, 250. Passmore v. North, 85. Passumpsic B'k v. Goss, 854. Pate V. Gray, 1425, 1429. 11. McClure, 1148, 1151. Pates «. St. Clair, 1431. Paton v. Coit, 198, 808. 11. Lent, 1012. Patience v. Townley, 1060, 1068. Patrick «. Beazley, 1005, 1014. Pattee v. McCrillis, 963. Patten ii. Ash, 1646, 1648. V. Gleason, 790. V. Merchants' Ins. Co., 802. V. Moses, 1191. Patterson ii. Hardacre, 167, 1483. V. McNeely, 1385. V. Poindexter, 1703, 1705. 11. Todd, 611. Pattison v. Hull, 1250, 1251. V. Supervisors, 1524. Patton 11. Shanklin, 1317. 11. State B'k, 1482, 1695. Patts J). Bell, 221. Paul 11. Berry, 318. Paulette v. Brown, 829. Payne v. Bensley, 824, 827. 11. Clark, 86. «. Commercial B'k, 1311, 1316, 1828. 11. Floumoy, 268. V. Jenkins, 35. Paysant v. Ware, 83. Peabody v. Harvey, 1157. V. Peters, 1437. V. Rees, 726, 808. Peacock v. Purcell, 82S, 998, 1276. Pearce v. Austin, 1185, 1200. 11. Davis, 1623, 1646, 1648. 11. Madison, &c. R.R. Co., 377. 11. Wren, 1765. Pearl ii. McDowell, 212. Pearsall v. Dwight, 866, 867, 883. Pearson ». B'k of Metropolis, 661. V. Crallan, 1015, 1083, 1034, 1057,1457. v. Cummings, 123. 11. Garrett, 41. 11. Pearson, 179. V. Stoddard, 76, 715. Pease v. Cornish, 430,433. V. Dwight", 706, 1404. 11. Gloahec, 1750. ». Hirst, 741,1197, V. Morgan, 287. V. Pease, 303. 11. Warner, 326, 575. Peaslee «. Robins, 9:!, 536. Peasley ii. Boatwrig-ht, 32, 162. Peck 11. Cochran, 505. V. Hozier, 886. 77i« re/erareces] TABLE OF CASES. [are to the aeotkma. Ixvii Peck V. Mayo, 918, 930. ®. Regina, 1 96. Pecker «. Sawyer, 1317. Peckham ». Gilma;n, 713. Peden v. Moore, 303. Peele v. Northcote, 514. Peet V. Zanders, 1131. Peets B. Bratt, 63. Pekin v. Reynolds, 1479. Pender b. Kelly, 853. Pendleton v. B'k of Kentucky, 393. Pendleton Co. ■». Amy, 1530, 1533,1537, 1545, 1547. Penkwil v. Connell, 398. Penn v. Edwards, 1199. 1). Harrison, 1678. Penniman v. Meigs, 875. Pennington v. Bsehr, 74, 1493. V. Gittinga, 179. Pennock «. Coe, 1493. Penny «. Graves, 81. B. Innes, 705, 714, 1303. Pentz ». Simeon, 348. V. Stanton, 303, 305, 311. People V. Baker, 1633, 1648. V. Batchellor, 1 556. V. Bostwick, 856, V. Brigham, 1346. V. Gamer, 1335as. V. Gates, 132. V. Getchell, 1348. V. Gray, 433, 437. ■V. Halden, 1555a. ■0. Howell, 1648. V. Lawrence, 1556, 1557. i>. MoDermott, 108. ». Mead, 1495, 1553. ». State Treasurer, 1685, 1686, V. Sup. of Eldorado Co., 433, 437, 1536. V. Tazewell Co., 1497, 1535. «. Township Board of Salem, 1533. V. Warfield, 1335a. V. Weant, 1335a. People's B'k v. Brooke, 656, 953. V. Keech, 999. Peoria R. R. Co. B. Neill, 533. Pepoon V. Stagg, 39, 1395. Percival v. Frampton, 165, 183. Perfect v. Murgraye, 1336. Perkins' Case, 75, 76. Perkins ®. Barstow, 713. v. Catlin, 1765. v. Challis, 796. «. Clements, 1184. «. Commonwealth, 1346. V. Cumming. 304. V. Franklin B'k, 633, 633, 1671. V. Hawkins, 1438. Perkins v. Lymans, 196. V. Prout, 81.5. Perreira ». Jopp, 116, 463. Perrin «. Broadwell, 1304. ». Keene, 870. Perringc. Hone, 361, 1390. Perry v. Barrett, 1750. B. Crammonds, 64. V. Green, 607, 609. V. Hadnett, 1838. V. Harrington, 513. V. Mays, 1437. ». Taylor, 1458a. Peru V. Parnswortb, 56. Peters ». Anderson, 1353. 0. Beverley, 1360. D. Hobbs, 1033, 1071. Petersen v. Union Nat. B'k, 1596. Peterson «. Mayor of New Tork, 317. Petit D. Benson, 516. Peto t). Reynolds, 96. Petrie v. Feeter, 1809. Pettee v. Prout, 1300, 1431, 1437. Pettilon V. Noble, 834. Petty v. Fleispel, 86. B. Hinman, 758, 778. Peyton ». Hallett, 31, 33. ». Harman, 76. Pflel ». Vanbatenberg, 1306, 1337. Phelan 4). Moss, 773, 775, 779, 1407, 1409. Phelps 11. Alfred B'k, 1586. ■a. Moorman, 48. ». Northrup, 505. V. Phelps, 179. «. Vischer, 713. V, Younger, 196. Philadelphia b. Field, 1556. Philadelphia Loan Co. b. Towner, 884. Philadelphia, &c. R. R. Co. b. Northam, 1738. Philipe V. Harberlee, 1007. Phillips B. Alderson, 1016. V. Astberg, 590. B. BuUard, 1623. B. Dugan, 1347. B. Frost, 497. B. Gould, 973, 983. B. Im. Thum, 908. B. Inthun, 136. B. McCurdy, 930, 1157. B. Paget, 327. B. Poindexter, 964. V. Preston, 187. B. Thurn, 538. Philliskirk b. Pluckwell, 354, 356, 686, 1184. Philpott B. Bryant, 454, 591, 1316. B. Jones, 1356. Phipps B. Milbury B'k, 331. Ixviii The references] TABLE OF CASES. {are to the sections. Pliipps V. Tanner, 86. PhcEnix B'k v. Hussey, 9. Phceuix Ins. Co. ». Allen, 472,1272,1376. V. Gray, 473. Phipson -B. Kneller, 1094. Phren v. Royal B'k of Liverpool, 1449. Pickard r. Bankes, lil87. Pickin 1). Graham, 1158. PJcquet v. Curtis, 576, 643. Pierce ®. Cate, 1144, 1310. V. Drake, 1369. 1). Goldsberry, 1317. D. Kittredge, 504. V. Pendar, 1006. 11. Strathers, 1030. V. U. S„ 440. V. Whitney, 1109. Piercy t). Pierey, 1391, 1418. Piersol v. Grimes, 1373. Pierson v. Dunlap, 503, 552, 554. t). Hutchinson, 1475, 1483. 1). Wallace, 1673. Pike V. Irvin, 568, 569. 13. Street, 717, 720. Pilkinton v. Commissioners of Claims, 1244. V. Woods, 449. Pillans V. Van Mierop, 176,539 ,553, 567. Pillow ». Hardeman, 1000. » Pilmer v. Branch B'k, 56. Pinard v. Klockman, 115. Pinckney v. Keyler, 1438. Pindall v. B'k of Marietta, 1350. 1). N. W. B'k, 1675. Pindar v. Barlow, 145. Pine 11. Smith, 787, 894. Piner v. Clary, 599, 605, 929. Pinkerton n. Bailey, 728. Pinkham ®. Macy, 983. Pinkney ';. Hall, 6, 488. Pinnel's Case, 1289. Pinnes v. Ely, 688. Pintard v. Tackington, 1472, 1484. Pitcher «. Barrows, 354. Pitman ii. Breckenridge, 970. n. Crawford, 50. 11. Kentner, 306, 402, 408. Pitt V. Chappelow, 242. %\ Pussord, 1840, 1341. V. Smith, 214. Pitts i). Keyser, 1198. Plant 11. Voeglin, 859. Planters' B'k v. Bradford, 1033. 11. Douglass, 533. V. Housen, "719. 11. Keese, 1567, 1568, 1569, 1636. V. Markham, 601. V. Merrit, 1636. V. Sharp, 385. Planters' B'k r. White, 1000. etc. V. Ervin, 387. 11. Evans, 138, 668, Piatt !>. Beebe, 183a. 11. Drake, 983. V. Jerome, 861. V. Smith, 1383. Platzer ii. Norris, 73. Plets V. Johnson, 130, 139. Plummer v. Lyman, 566. Pogue 11. Clark, 94. Poirier v. Morris, 827, 1192. Polhill ».. Walter, 64, 65, 307, 363, 485. Police Jury r. Britton, 420, 423. Polk 11. Spinks, 1064. Pollard 0. Bowen, 1586, 1600. 11. Harries, 1453. Pollock 11. Bradbury, 731. 11. Glassel, 34. Pomeroy ii. Ainsworth, 879. V. Rice, 1266, 1367. V. Tanner, 1313, 1339. Pond 11. Underwood, 1615. Pons 11. Kelly, 1082. Poole i\ Dicas, 580. 11. Rice, 305, 1260. V. Tolleson, 611. Pooley V. Harradine, 1334, 1336, 1387. Poore v. Magruder, 284. Poorman v. Mills, 1195. Pope V. Askew, 1219. e. B'k of Albion, 393, 1361, 1606, 1610. 11. Bui-nset, 119. V. Huth, 33, 513. V. Linn, 69, 70. Poplewell 11. Wilson, 108, 186. Popley v. Ashlin, 736, 1369. Porter n. Cumings, 287. 11. Cushman, 574, 694, 1230. T. Havers, 196. 11. Jones, 196. 11. Judson, 1116. V. Kemball, 1094, 1095. 11. Neckervis, 687, 1429. n. Talcott, 1264. Porthouse ii. Parker, 1086. Portland, &c. R.R. Co. v. Hartford, 1551. Posey V. Decatur B'k, 392, 654, 1478. Potter?). Merchants' B'k, 393. 11. Rayworth, 1110, 1158. 11. Tallman, 933. ■('. Tyler, 663. Potts 11. Blackwell, 834ffl. 11. Read, 699. Powell 11. Charless, 1399, 1300. ». Commonwealth, 1344. V. Duff, 143. V. Feeley, 135. 11. Hogue, 1439. 77m re/erenw] TABLE OF CASES. [are to the sections. ]xix Powell V. Jones, 506. ». Monnier, 14, 66, 553. v. Roach, 1475. V. Waters, 05, 630, 726, 751, 790, 793, 1190, 1336. Power V. Pinnie, 698. ». Hathaway, 884. Powers V. Briggs, 403. ■». French, 175. ■B. Lynch, 078. V. JSTeeson, 724. Poydras v. Delamere, 23. Pratt 1). Beaupie, 418. «. Chase, 875, 1283, 1331. V. Goman, 183ai. V. Poote, 1266, 1621. «. Parkman, 1731. «. Topeka, 1188. Prayne v. Milwaukee, 1458a. Prentice v. Zane, 803, 828. Prentiss u. Danielson, 1143. V. Graves, 828. «. Savage, 879, 921. Prescott«. Flinn, 390, 296. 1). Hull, 740. 1). Ward, 187. B'k V. Caverly, 242, 466, 473, 075, 719. Preston v. Dunham, 47. ®. Hull, 148, 1499. V. Jackson, 306. 1). Mo., &o. Lead Co., 387. V. Morris, 834. 11. Whitney, 51. Prestwick «. Marshall, 252, 681. Prettyman ii. Tazewell Co., 1497, 1523, 1534, 1536. Price ». Barker, 1295. V. Cannon, 1389. V. Dunlap, 1481, 1484. V. Edmunds, 1319, 1335, 1336. V. Lavender, 715, 716. V. Neal, 533, 1335. V. Page, 898. V. Price, 1260, 1269, 1372, 1475. ». Taylor, 403. ■V. Teal, 54. 1). Torrington, 1057. 1). Trusdell, 703. «. Young, 591, 1036, 1111. Prideaux «. Collier, 1075, 1107, 1163. Pridgen ». Andrews, 1458a. Pridgeon p. Cox, 502. Prigeon •». Smith, 170. Prince v. Boston, &c. R. R. Co., 1733. V. Brunatte, 212, 681. Pring -D. Clarkson, 1 338. Pringle v. Phillips, 775, 814. Proctor V. Sears, 233. ■u. Webber, 403. Prouty V. Wilson, 1331. Protection Ins. Co. v. Hill, 47. PuflFer V. Smith, 849. Puget de Bras v. Forbes, 174, 178. Fullen 1}. Shaw, 1420. Pulsifler v. Hotchkiss, 303. Purcell V. Allemong, 1568, 1586, 1587, 1596, 1636. Purchase v. Mattison, 792, 1049, 1105 1596. Puryear v. McGavock, 200. Putnam «. Dike, 884. v. Lewis, 1267, 1373, 1373. ». Schuyler, 1809. V. Sullivan, 143, 147, 843, 847, 1144. V. Tash, 1758. Putney v. Farnham, 596. Quimby v. Buzzell, 113, Quin 1). Hanford, 569. V. Sterne, 688, 710, 715. Quinhy «. Merritt, 55, 103. Quincy, &c. R. R. Co. ». Morris, 1533. Quinn v. Hard, 1190. ». Tuller, 190. Raborg ii. Peyton, 534. Rae V. Halbert, 1426. Raggett «. Axmore, 1333. Rahm v. Philadelphia B'k, 656. Railroad Co. «. Chamberlaine, 176, 186. V. Evansville, 1537. 11. Howard, 1708. 1). Johnson, 1348. V. Otoe Co., 1531, 1533. Railway s. Cleneay, 1489, 1500. Rainbolt v. Eddy, 1406. Raine v. Rice, 962. Ralston v. Bulitts, 1083, 1106. Rait V. Watson, 1483. RamduUoday v. Darieux, 1083. Ramsdale v. Horton, 1675. Ramsdell v. Morgan, 807. Ramsey ®. Anderson, 1189. ■B. Peoria, 386. Ramuz v. Crowe, 1484. Rand ». Dovey, 31, 664, 1196. V. Hale, 403. 11. Hubbard, 261, 680. V. Reynolds. 1038. V. State of N. C, 797. Randolph v. Parish, 138. Raney v. Winter, 398, 411. Ranger v. Carey, 746. ». Sargent, 1771. Rankin v. Childs, 1785. V. Roler, 34. Ranklin v. Weguelin, 34. Ransom ii. Mack, 984, 1014, 1115. Ixx The nf6rencei\ TABLE OF CASES. lantotTie. Rapeleye v. Barley, 1785. Raper «. Birkbeck, 549. Raphael b. B'k of England, 774, 1680. Rastell v. Draper, 1580. Ratcliff D. Planters' B'k, 1144. Raught ». Black, 1319. Eawlinson ». Stone, 243, 680. Rawson «. Walker, 80, 81. Ray B. Indianapolis Ins. Co., 93. v. Faulkner, 513. V. McMillan, 764. ». Smith, 1138, 1143. Raymond «. Baar, 1675. B. Holmes, 898, 901, 909, 910. V. Mann, 138. J). Merchant, 1275. ®. Middleton, 106. Rayne v. Dills, 670. Eea 11. Dorrance, 1083. B. Owens, 1289. Read «. B'k of K'y., 934. v. Cutts, 1786. ■0. Marsh, 552, 553. ». McNulty, 54. «. Norris, 1843. V. Wheeler, 86, 39. v. Wilkinson, 508, 1163. Reakert «. Sanford, 354, 681, 1353. Reamer b. Bell, 693. Reavis it. Blackshear, 170. Reddick b. Jones, 883. Redington «. Wood, 677, 915, 1654, 1661. Redlick «. Doll, 143, 842, 843, 1406, 1498. Redman «. Adams, 51. ■D. Deputy, 1317. Redmayne ®. Burton, 1696. Redmond «. Stansbury, 1200. Reed «. Batchelder, 223, 230, 231. B. Boardman, 1251. V. Boshears, 333, 235. B. Evans, 1764. e. Roark, 74, 1400. ». Trentman, 792. B. White, 1299. B. Whitney, 1428. Reedy v. Seixas, 979. Rees B. Abbott, 94. V. Berrington, 1386. V. Conococheague B'k, 145, 663, 694, 695, 1195. B. Warwick, 506. Reeve v. Pack, 643. Reeves b. Howe, 996. B. Scully, 834. B. State B'k of Ohio, 328, 341,344. Regina b. Coulsen, 1348. B. Hawkas, 96. B. Keith, 1346. B. Sewell, 207. B. Watts, 1649. Regina b. Wilson, 1344. ■Reichert b. Koerner, 726. Reid B. Coats, 971. B. Purnival, l81, 668. B. Morrison, 1144, 1145. B. Payne, 1022, 1025. B. Reid, 1595. B. Smart, 1254. Reigart B. White, 1753. Reinbath b. Pittsburgh, 1537, 1533. RelyeaB. N. PI. Rolling Mill Co., 1739. Renick v. Robbins, 991. Renner B. B'k of Columbia, 622, 623, 1472, 1473, 1481. B. U. S., 632. Rensbaw b. Triplett, 987. Requa b. Collins, 1032. Revel B. Revel, 256. Raw B. Barber, 1364. Rex B. Atkinson, 1347. B. Beckett, 1350. B. Begg, 688. B. Box, 101, 104. B. Burke, 1346. B. Elliott, 86. B. Hales, 1344. B. Hall, 1346. B. Hart, 1344. ». Hunter, 133. B. Lambton, 63, 67, 667. B. Palmer, 1350. B. Parke, 1345. B. Pateman, 1346. B. Plumer, 1052 . B. Post, 76, 1846, 1347, 1350. B. Randall, 145. B. Reculist, 1346. ». Richards, 1316. B. Rogers, 1345. B. Shukard, 1350. B. Treble, 1346, 1377. B. Webb, 1345. Rey B. Ivennear, 481. B, Simpson, 703, 710, 712, 715. Reynolds ». Appleman, 969, 976, 984. B. Chettle, 588, 656. B. Douglass, 1147, 1788. B. French, 1468. B. Peto, 96, 506. Rhemstron b. Cone, 124. Rhett B. Poe, 999, 1058, 1081, 1086, 1788. Rhode, ex parte, 1144. B. Alley, 728. B. Proctor, 1001. Rhodes b. Lindley, 55. B. Seymour, 608. Rice B. Gove, 401. B. Hogan, 128. B. Ragland, 80. The references-] TABLE OF CASES. [are to the secUms. IxXl Rice V. Stearns, 700. Rich V. Errol, 433. V. Lambert, 1729. V. Starbuok, 99, 143, 145. V. Topping, 1317. Richards ii. Daily, 663, 725. V. Darst, 63. V. Doe, 1742. ®. Frankum, 1 13. 1). Globe B'k, 923. V. Richards, 86, 354, 256, 686, 1184. Richardson v. Carpenter, 50. V. Daggett, 355. V. Ellett, 83. V. French, 859. V. Lincoln, 63, 66, 700, 1301. B. Mellish, 196. V. Merrill, 350. «. Parker, 1433. V. Rice, 830. V. Rickman, 1360. V. Schirtz, 850. V. Scobie, 751. Richie v. Bradshaw, 1590. V. McCoy, 1082. Richmond v. Heapy, 354. Mfg. Co. V. Davis, 1387. Richmond, Pot. & Fred. R. R. Co. ». Snead, 418. Richter v. Selin, 1140, 1143, 1148. Richwine v. Keirn, 357. Ricketson v. Wood, 1804. Ricketts v. Pendleton, 731, 959. Rickford v. Ridge, 831, 1590, 1593. Ricord v. Bettenham, 231. Rideout ii. Bristow, 80, 827. Ridgeway v. Day, 1106. Ridgway v. Farmers' B'k, 393, 397. Ridley ii. Taylor, 366. Riegel «. Cunningham, 736, 786. Rigby, ex parte, 1615. D. Norwood, 1764. Riggin V. Collier, 1 1. Riggs ». Lindsay, 565, 1450. V. Waldo, 713. Riker v. Cosby, 694. Riley v. Dickens, 86. V. Sehawhacker, 803. Rindskoff «. Barrett, 1706. Ringgold V. Tyson, 1217. Ringo B. Trustees, 1683. Ripley ». Greenleaf, 1339. Ritchie v. Moore, 694, 1438, 1439. Rittenhouse «. Ammerman, 263. Ritter ii. Singmaster, 205, 1374, 1369. Rivers v. Moss, 170. V. Parmley, 960, 963. Roach ®. Ostler, 128, 482. V. Roanoke Classical Seminary,80. Roak V. Turner, 767. Robarts d. Tucker, 1571, 1658, 1663. Robb B. Bailey, 683, 1182. D. Ross Co. B'k, 393. Robbins ». Eaton, 331, 334. V. Pinkard, 1057. Robinson ». Leavitt, 1493. Roberts v. Austin, 19, 313, 1567, 1637, 1638, 1639, 1643. V. Bethel, 63, 492, 494. V. Bradshaw, 1051, 1160. «. Fisher, 787. V. Hall, 781. V. Hardy, 216. V. Jacks, 51. V. Lane, 726, 803, 815. V. McGrath, 854. V. Manson, 1119. ». Masters, 707, 718, 716. ®. Peake, 41. V. Roberts, 196. V. Wood, 834. Robertson ». Allen, 675. V. Banks, 263, 371. v. Burdekin, 905. V. City of Rockford, 1524. V. Kensington, 697, 698. V. Parks, 1438. V. Robertson, 196. V. Smith, 1294, 1296. V. Stewart, 101. V. WiUiams, 189, 700. Robins v. Bacon, 17, 21, 22, 1731. ■V. Gibson, 940, 943, 1076, 1078. Robinson's Adm'rs «. Allison, 1252. Robinson, ex parte, 312, 814. 11. Abel, 713. 11. Ames, 454, 471,1076,1313. V. B'k of Darien, 1478, 1693. V. Bartlett, 713. V. Beall, 1682. V. Bland, 86, 128, 304, 313, 740, 866, 879. ». Blen, 598. V. Gardiner, 16S1, 1691. 11. Hamilton, 1030. «. Hawks, 1638. 11. Lair, 184. ■B. Law, 133. V. Lyle, 1331. 11. Read, 740, 1371. V. Reynolds, 174, 803. V. St. Louis, 1522. V. Taylor, 373. V. Yarrow, 390, 536, 538, 539, 1335, 1364. Robson V. Bennett, 992, 1590. V. Curlewis, 983. V. Early, 1198. Rock B'k 11. Hewitt, 633. Co. Nat. B'k V. Hollister, 698, 721, 1193. Ixxii Tlie references] TABLE OF CASES. [are to the ^ecUonK Rockhill V. Moore, 732. Rockwell V. Hunt, 122. Rodabaugh v. Pitkin, 1787. Roden i>. Rydc, 1218. Rodes V. Patillo, 170. Rodick «. Gandelle, 1645. Roehner v. Knickerbocker Life Ins. Co., 621. Roger v. Keystone Nat. B'k, 827. Rogers v. Batchelor, 366, 369. D. Burlington, 1533, 1533, 1533, 1547. 1). Colt, 688. 1'. Gibson, 101. ». Hackett, 1110, 1163. v. Hadley, 193, 770. J). Langford, 1119, 1679. 13. Miller, 1484. V. Morton, 816. V. Posters, 1S83. 11. Stephens, 943, 971, 986, 1162. V. Walker, 313. V. "Ward, 348. •■!). Ware, 136, 188, 139, 140, 163. V. Warner, 1770. V. Waters, ] 86. Rogerson v. Hare, 991. RogetJ). Merrltt, 1369. Rohan «. Hanson, 1352. Rohde, ex parte, 1144. Rohrer v. Morningstar, 1317. Roland ii. Logan, 354. Rolfe V. Wyatt, 1335. Rolin V. Stewart, 1638, 1643. Eolleston v. Hibbert, 744. Rollins V. Bnrtlett, 1393. ». Gilson, 986. Rolt !). Watson, 1475. Rome V. Cabat, 1533. Roof T. Stafford, 329. Roosai). Crist, 663, 904. Roosevelt ii. Draper, 1528. v. Woodhull, 1066. Root «. Franklin, 640. V. Taylor, 1433. Roquette «. Overman, 898, 908. Roscoe p. Hardy, 1334. Rose «. City of Bridgeport, 1489. V. Hurley, 859. 11. Laffan, 1187. v. Learned, 81. V. San Antonio R. R. Co., 188. V. Sims, 187, 744. V. Williams, 1316, 1338. Rosier v. Kiernan, 990. Ross, ex parte, 1434. 11. Bedell, 165, 198, 814, 909, 1085. v. Drinkard, 815. V. Donald, 850. ». Espy, 103, 703, 716. Ross 11. Planters' B'k, 979. 11. Terry, 731. Rossiter ii. Rossiter, 281, 306, 308. Rothschild ». Corney, 1506, 1634. V. Currie, 908, 911, 936, 970. V. Leavitt, 1493. Rounds 11. Smith, 1636. Roundtree v. Baker, 173. Routh 11. Robertson, 984. Row 11. Dawson, 23. Rowan v. Odenheimer, 979. Rowe V. Tipper, 988, 1044, 1045. 11. Young, 459, 519, 641, 1381. Rowland v. Bigelow, 1746. V. Hoke, 1763. V. Sprinjett, 983. Rowley v. Ball, 1478, 1484. Rowlinson ii. Stone, 265. Rowt 11. Kyle, 1319. Roxborough ». Messick, 837. Roylston Nat. B'k ». Richardson, 1369. Ruoker « Dearing, 1245. 11. Hiller, 971, 1076, 1081. 11. Wadlington, 363. Ruddell V. Landers, 738. Rudderow ii. Huntington, 193. Raff i;. Webb, 35. Ruffin V. Armstrong, 763. Rugely V. Davidson, 611. Ruggles 11. Patten, 643, 1396. Rundel ®. Keeler, 334. Rundle v. Moore, 330. Runnion n. Crane, 1418. Runyon v. Mountfort, 1025. Rushforth, ex parte, 1343. Russell 11. Clark, 1785. J). Drummond, 394. 11. Hadduck, 775. n. Hankey, 1024. V. Langstaflfe, 142, 144, 145, 873, 694, 843, 1037, 1172. n. Lee, 224. ». McNab, 1876. V. Moseley, 1766. 11. Phillips, 450, 479, 516. v. Russell, .54. «. Swan, 664, 683, 684. v. Wiggins, 551, 561, 897, 1799. 11. Whipple, 88. & Erwin Man. Co. v. Carpenter, 1284. Rust». Gott, 3 95. Rutherford v. Mitchell, 1187. Rutland B'k v. Buck, 793. Rutland, &e. R. R. Co. r. Cole, 1187. Ryland v. Brown, 774, 789. Sackett v. Kellar, 797, 861. 11. Palmer, 46. 11. Spencer, 38. The references^ TABLE OF CASES. [aretothe secHons. Ixxiii Sackley v. Furse, 221 . Sackrider ». Brown, 581, 582, 386. Saco Nat. B'k v. Sanborn, 1024, 1032, 1050. SafEord v. Wyckoff, 382, 889, 411, 991. Sage «. Wilcox, 1764. St. John D. Homans, 1595, 1620. V. McConnell, 1217. V. Redmond, 297. v. Roberts, 997, 1238. St. Joseph Township v. Rogers, 1520, 1523, 1535a, 1537, 1550, 1557, 1561. St. Louis ». Alexander, 1559. &c. Ins. Co. V. Horner, 81. Salamons ». Hoyt, 90. Salinas v. Wright, 41. Salisbury ®. Renick, 1147, 1149. Salter ». Burt, 627, 1578. Saltmarsh ». Planters', &c. B'k, 751, 753, 763. «. Tuthill, 983, 1217. Salt Springs Nat. B'k?). Burton, 600, 602. B'k V. Syracuse Sav. Ins., 528. Sammons v. Halloway, 122. San Antonio c. Lane, 1500, 1513, 1514, 1523, 1527. V. Meharty, 1495, 1537. Sanborn «. Neal, 406. Sanders «. Anderson, 75. v. Bacon. 152. ■0. Blainei 266. V. Gillespie, 723. V. Vanzeller, 1748. Sanderson v. Bowes, 519, 642, 645. V. Colman, 535. II. Judge, 635, 642, 652, 657, 1021, 1049. V. Oakey, 1119. 1]. Reinstadler, 1016. San Diego v. San Diego, &c. R. R., 282. Sands «. Clarke, 1119. V. Smith, 894. Sanford v. Allen, 1769. V. Dillaway, 1172. V. Mickles, 370, 683. ■0. Norton, 775. 11. Sanford, 255. Sanger v. Stimpson, 56, 979. Sankland v. Corporation of Washing- ton, 277. Sansome ®. Bell, 1771. Sargent v. Appleton, 1306. Sarsfleld v. Witherly, 6. Sasportas v. Jennings, 856. Sasscer v. FaiTiers' B'k, 969. «. Whitely, 1031. Satterlee i). Mathewson, 1565. Saul V. Creditors, 875. V. Jones, 519. Saunders J). Wakefield, 1764. •B. White, 1690, 1691. Saunderson v. Jackson, 74. ». Piper, 86. Savage v. Aldren, 697. V. King, 243, 681. V. Merle, 1221. V. Walshe, 385. Savings B'k «. Benton, 3!i3. Co. -0. New London, 391. Sawyer v. Bradford, 1311. V. Parker, 124, 125. V. Prickett, 834a. i>. Wisewell, 176, 205, 805. Sayre v. Frick, 684, 999. V. Nichols, 411. ». Reynolds, 1418. «. Wheeler, 69. Scaife®. Tobin, 1738. Scarborough v. Harris, 1083.' Scarpellini «. Atcheson, 254, 257. Schafer e. Farmers' & Mechanics' B'k, 713. Schenley » Commonwealth, 1560. Schepp V. Carpenter, 184, 791, 792, 793. Schimmelpennich ii. Bayard, 451, 524, 551, 560, 561, 17119. Schley v. Merritt, 713. Schlussel v. Warren, 1317. Schmidt «. Schmaelter, 74. Schnebly v. Ragan, 1281. Schneider ii. Norris, 74. V. Schiffman, 712, 713, 715. Schnewind v. Hacket, 1385. Schofield V. Bayard, 526, 1068. V. Day, 917, 918. Scholefield «. Eichelberger, 1060. Scholey v. Ramsbottom, 1235, 1631. V. Walsby, 1229. Schollenberger v. Seldenridge. 1301. «. Nehf, 715. School Directors «. Fogleman, 377, 429. Dist. V. Sippy, 290. V. Thompson, 319. Schooner Freeman v. Buckingham, 1729. Schryver v. Hawkes, 143. Schuchardt v. Hall, 1074. Schultz V. Ashley, 490. D. Astley, 142, 144. Schoer v. Houghlin, 286. Schuylkill County ». Copely, 847. Schwalm v. Mclntire, 1386. Scolleins v. Flyn, 195. Scott ». Baker, 403. 1). Bevan, 917, 1454. 1). Colmisnil, 350. 11. Commonwealth, 1672. ». Crews. 386. V. Gillmore, 304. V. Greer, 1107. Ixxiv Tfie references] TABLE OF CASES. [are to the sections. Scott ». Hall, 1318. v. Lefford, 1290. ». LiflEord, 993, 995. v. Lloyd, 1317. v. McLellan, 395. V. Nat. B'k, 386. V. Ocean B'k, 333. V. Searles, 365. V. State B'k, 855. V. Treiits, 1430. V. Waken, 1395. Scoville r. Canfield, 882. 1). Landon, 813. Scruggs V. Cass, 737, 1677. Scudder ii. Thomas, 305. ». Union Nat. B'k, 504, 867. Scull V. Edwards, 130, 663. ®. Mason, 1096. Seabury v. Hungerford, 708, 1099. Seacord v. Miller, 1134. Searight v. Callright, 874. Searle ». Norton, 1587. Sears v. Brink, 1764. V. Wingate, 1738, 1739, 1733. V. Wright, 43, 81. Seaton ». Scoville, 63, 995. Seaver v. Coburn, 403. 1-. Lincoln, 573, 604, 609. V. Phelps, 210, 685. Sobag 1). Abithol, 515. Sebree v. Dorr, 653. Second Nat. "g'k ii. Gaylord, 1787. V. Miller, 348. Security Nat. B'k (..Nat. B'k, 1603,1661. Sedgwick v. Lewis, 357. Selby V. Eden, 643. Seldenridge v. Connable, 83. Selfiidge v. Northampton B'k, 1669. Selser v. Brock, 1314. Sample v. Turner, 713. Seneca Co. B'k ». Neass, 644, 657, 963, 969, 1025. Sentance i). Poole, 210. Serle v. Norton, 85. I). Waterworth, 685. Sergeson v. Sealey, 318. Serrell i. Derbyshire R. R. Co., 1616. Sessions v. MoseJey, 34, 26, 1181. Seventh Nat. B'k v. Cook, 1636, 1663. Seventh Ward B'k ti. Hanrich, 1041. Sewanee Mining Co. v. McCall, 360,391, 393. Sewell V. Evans, 1218. Seybel v. Nat. Currency B'k, 441, 775 776, 1500. Seybert v. City of Pittsburgh, 1533, 1533. Seymour v. Continental Life Ins. Co., 1458a. '('. Farrell, 710, 713. D. Mickey, 713. Shamburghi). Cammagere, 635, 1317. Shank v. Butsch, 74. Shankland d. Corp. of Washington, 277. Shanklin ». Cooper, 901, 936. Shannon n. Langhorne, 187. Sharp 11. Bailey, 90, 1085. V. Emmett, 314. Sharpe v. Bagwell, 1393. V. Bellis, 305. Sharpless v. Mayo, 1533. Shaver v. Ehle, 113, 1220. 11. Ocean Mining Co., 400. V. Western Union Tel. Co., 508. Shaw V. Craft, 990. 11. Dennis, 1556, 1557. v. Emery, 252. V. Gjirdaer, 1740. V. Knox, 703. ■B. M. E. Sec, 79, 154. v. Neal, 1060. 1070. V. Reed, 644, 653, 1144. «. Stone, 424. Shaylor v. Mix, 1012. Sheboygan Co. ». Parker, 1533. Shed V. Brett, 573, 593, 979, 9'Jl, 1050, 1051, 1118, 1209, 1213. Sheehy ii. Mandeville, 1360, 1261, 1297, 1399. Sheets ii. Pabody, 268. Sheffield ii. Larue, 307. 308. Shelburne Falls Nat. B'k v. Townsley, 1003, 1005, 1006, 1014, 1021, 1038, 1044, 1045. Sheldon v. Benham, 584, 993. r. Button, 26. V. Chapman, 1103. v. Horton, 1104. V. Kendall, 1431. V. Parker, 753a. Shelton ®. Braithwaite, 974, 983, 1026. V. Bruce, 41. V. Darling, 413. 11. Gill, 63. Shepard v. Hawley, 999. Shepherd v. Evans, 1184. 11. Graves, 83 1). Temple, 203. Sheppard v. Harrison, 1734. Sherer v. Easton B'k, 959, 1165. Sherman v. Comstock, 1586. V. Gilbert, 749. v. Mclntyre, 71. Sherrard v. Lafayette County, 1549. Sherrill v. Hopkins, 875, Sherrington v. Yates, 357, 1184. Sherrod v. Bhodes, 1163. Sherwood v. Archer, 307. v. Roys, 1181. v. Snow, 357, 366. v. Stone, 314. Tlierefereneesl TABLE OF CA.SES. [are to the aeatlona. IxXV Sheurll v. Knox, 1785. Shields ». Middleton, 568. Shipley v. Carroll, 837. Shipman ». Cook, 971. Shirefft). Wilks, 489. Shirley v. Fellows, 1048, 1077. V. Howard, 177. V. Todd, 1437. Shirts V. Overjohn, 850, 851. Shiver v. Johnson, 113. Shoe & Leather Nat. B'k v. Doe, 407. Shoemaker v. Goshen Township, 1545. V. Mechanics' B'k, 1008. Shoemakers' B'k n. Street, 56. Shook®. Shute, 1789. Short V. City of New Orleans, 422, 429, 431. v. Trabue, 880, 899. Shortbridges' Case, 1615. Shortrede v. Cheek, 1766. Shotwell 1). McKown, 400. Shrewes v. Allen, 775. Shrieve 5). Duckman, 985,1590. Shriner v. Keller, 1265. Shumway ®. Eeid, 1267. Shuler v. Gillette, 1380. Shute V. Robins, 466, 471, 472, 474. Shuttleworth v. Noyes, 242. V. Stevens, 133. Sibree v. Tripp, 1703, 1707. Sicard v. "Whale, 886. Sice «. Cunningham, 607, 609, 611, 612, 1163. Siebel v. Vaughan, 1406. Sifl'kin V. Walker, 300. Sigerson v. Mathews, 1103, 1147, 1149, 1162. Sigourney v. Lloyd, 698. V. Wetherell, 1328, 1788. Sill i>. Leslie, 717. Silliman v. Fredericksburg, &c. R. E., 1498, 1550. Simeon Leiand in Bankruptcy, 1487. Simo V. Hammond, 834J. Simon ». Hust, 800. Simonds n. Merritt, 803. Simons v. Steel, 1764. Simpson ■». Davis, 1418. V. Field, 1298. V. FuUenwider, 751. «. GrifBn, 1459. ®. Ingham, 1250, 1253. 1). Meneden, 56. V. Pacific, &c. Ins. Co., 1590, 1593. V. Stackhouse, 1417. V. Turney, 1044, 1045. V. Vauglm, 1298. 11. White, 963. Simmons v. Taylor, 1585a. Simms i>. Clark, 1675. «. Stillwell, 262. Sims v. Bice, 851. B.Bond, 1614. Sinclair v. Baggaley, 65. V. .Lynch, 983. Sisson V. Tomlinson, 1083. Sistermans v. Fields, 198, 815. Sizer v. Heacock, 1319. Sketoe v. Ellis, 1426. Skilbeck v. Carbett, 1024. V. Garbett, 1054. Skilding v. Warren, 789. Skillman v. Titus, 1633. Skinner v. Church, 699, 719. V. Somes, 743. ■V. Tinker, 913. Skowhegan B'k ii. Baker, 1197. , Slack V. Kirk, 704. «. Marysville R. R. Co., 1523,1524.. Slagle V. B'k of Valley, 704. V. Rust, 704. Slawson v. Loring, 241, 303, 410, 413,. 414, 686. Slayback v. Jones, 1431. Slaymaker «. Gundacker, 1263. Slipper V. Stidstone, 1428. Sloan V. Union B'k Co., 814, 815. Slocum V. Hooker, 238. V. Lizardi, 999. V. Pomeroy, 678, 899, 921. Slocumb V. Holmes, 1268. Sloman v. B'k of England, 1612. V. Cox, 1411. Slotts ». Byers, 834. Small V. Clark, 1099. 1). Clewley, 31. V. Franklin Miaing Co., 1633. V. Sloan, 1776. V. Smith, 790. Smalley v. Bristol, 159. «. Wright, 130, 741. Small's Adm'r i>. Lumpkin, 223. Smallwood v. Vernon, 104. Smead v.- Indianapolis R. R. Co., 383. V. Trustees of Union Township, 1524 1550 Smedes v. B'k of Utica, 831, 991. Smilie v. Stevens, 45, 1707. Smith V. Abbott, 508, 509. V. Alesworth, 1209. V. Allen, 39. V. B'k of Washington, 1212. V. Bean, 69. V. Becket, 1172. V. Boehm, 55. ». Boulton, 983. V. Braine, 166,808, 814, 815,1469.- V. Brooks, 199. i>. Brown, 502. Ixxvi Therefer: TABLE OF CASES. [are to the section,. Smith B. Buchanan, 875. «. Carter, 730. ■V. Case, 69. V. Chester, 533, 1225, 1360, 1360, 1364. V. Childress, 721. 11. Clarlt Co., 1513. V. Clarke, G96. E. Clopton, 53, 728. V. Cu£f, 194. «. Curlee, 936, 1147. V. Dann, 1755, 1785. V. Dunham, lo93. V. Eureka Flour Mills, 383, 383. V. Fisher, 1116. V. Foley, 734. V. Gibbs, 653. D. Gibson, 294. ». Harper, 1366,1311. 1). Hawkins, 1321. 11. Hill, 963. «. Hiscock, 737, 803. ■V. Hyde, 1317. ■0. Ide, 1764. V. Inhabitants of Cheshire, 433, 437,434. ■B. Isaacs, 184. «: Jay, 1311. ■B. Johnson, 671. «. Jones, 1587, 1592. V. Kendall, 54, 104, 620, 1181. ■B. Kittridge, 179. V. Knox, 1307. «. Law, 382. ». Little, 938, 983, 1043. V. Lockridge, 485, 1092. D. Lockwood, 1375. ». Lord, 80. 1). Lovingston, 775. i>. Loyd, 1352. V. Mace, 1410. v. Marsack, 93, 228, 242, 535, 536. V. Mayo, 232, 234. -c. McClure, 63, 64, 65, 105, 493, 1482, 1483. 1]. McLean, 644. «. Mead, 867, 879. V. Mercer, 670, 1225, 1360, 1371, 1034, 16fi8. «. Merrill, 703. «. Miller, 453, 971, 1276, 1330, 1590, 1633, 1625. v. Moberly, 854. V. Mullett, 1008. V. Muncie Nat. B'k, 63, 532. V. Nightino-ale, 53. V. Nissen, 506, 1254. V. Owens, 1260. V. Pedlev, 353. ®. Philbrick, 040, 1180. Smith v. Pickering, 260. ». Koach, 449,454,1045. «. Rockwell, 1473, 1480. v. Rowland, 1081. V. Sac County, 815. V. Sawyer, 1254. V. Screven, 1251. V. Shaw, 1454. «. Silvers, 63. «. Sloan, 358. V. Smith, 86, 875, 918, 1398, 1580. V. Spinolla, 886. «. Strader, 866. 11. Stranger, 288. e. Union B'k, 1585a. ». Vertue, 509. V. Walker, 87, 1479. 11. Weld, 1387. n. Whiting, 266,684,685,979,980. D. Winter, 1331. «. Wood, 1247. Sraithwick v. Anderson, 1317. Smyley v. Head, J 314. Snaith v. Mingay, 12, 65, 869. Snead v. Coleman, 362, 363. Snee v. Prescott, 698, 1730, 1744. Sneed «. Mitchell, 684. 11. White, 1311. Snellgrave «. Bailey, 24. Snevely v. Read, 182. Snively B.Johnson, 1759. Snow n. Peacock, 772, 1463. 11. Perkins, 909, 910, 979, 980. Snyder v. Oatman, 738. v. Reno, 731. V. Riley, 784. 11. Studebaker, 93. 11. Willey, 304. Scares ii. Clyn, 697. Society for Savings ii. New London, 389, 1500, 1509. Soflfe V. Gallagher, 1362, 1265. Solarte v. Palmer, 981, 985. Soloman o. Turner, 193. Solomons ». B'k of England, 385, 823, 1680, 1683. 11. Jones, 157. Solser 11. Brock, 1309. Soper 11. Henry Co., 1519. Soule 11. Bonney, 196. V. Chase, 1383. South, ex parte, 23. South Boston Iron Co. v. Brown, 176. Southard v. Porter, 745. South Carolina B'k v. Case, 363, 364. Southerland v. Whitaker, 1309. Southern B'k v. Mechanics' Sav. B'k, 1198. Life Ins., &c. Co. v. Gray,1188, 1189. The references] TABLE OF CASES. [are to m sections. Ixxvil Sowerby v. Butcher, 300. Spadine ». Reed, 568. Spalding ». Vandercook. 302. Spann v. Balzell, 1048. Spartali v. Benecke, 1379. Spaulding v. Andrews, 501, 567, 568. V. Evans, 103. Spear v. Ladd, 894. K. Pratt, 497. Specht V. Howard, 70. Spencer ®. Ballou, 331, 791. ». Blaisdell, 1673. ij. B'k of Salina, 1131. V. Harvey, 1093,1104,1181,1133, 1135. Sperry v. Horr, 61, 63, 133. n. Spaulding, 815. Spies «. Gilmore, 718, 1180. V. Newberry, 983. Spiller V. Creditors, 1353. Spinette ». Atlas Steamship Co., 1741. Spitler V. James, 90, 144. Spooner v. Gardiner, 1077. ■V. Holmes, 441, 775, 776, 1489, 1500. Sprague ». Tyson, 963, 1030. Spratt 1}. Hobhouse, 1687. Sprickill v. Martin, 1250. Sprigg 11. B'k of Mt. Pleasant, 1333. V. Cuny, 576, 1198. Spring V. Lovett, 81. Springfield B'k o. Merrick,150,154,1410. Sproat ». Mathews, 504, 511, 549. Spurgin v. McPheeters, 110, 173, 174, 190. Spurlock V. Union B'k, 1147, 1149. Spyker «. Spence, 895. Staats V. Hewlett, 361. Stacy V. Baker, 895. V. Dane Co. B'k, 341,343. Stafford v. Bacon, 183. D.Rice, 1317. V. Yates, 987. Stahl«. Berger, 1401. Stainback v. B'k «f Va., 380, 383, 283, 457, 587, 955, 964, 969, 1046. ■V. Read, 376, 380. Stalker v. McDonald, 758, 827. Stam 11. Kerr, 1260, 1363. Standage ». Creighton, 1109, 1158,1167. Stanford ®. Pruet, 868. Stanton v. A. & C. R. R., 1491 . V. Blossom, 987, 988, 990, 993, 1075, 1213. Stanwood v. Stanwood, 357, 1184. Staples V. Franklin B'k, 1209, 1671. V. O'Kines, 1075, 1173. Starin v. Town of Genoa, 1530, 1533, 1532, 1533, 1553. Starke v. Cheeseman, 128. Starr ®. Metcalf, 1383. V. Richmond, 1353. Staylor v. Williams, 640, 1180. State V. Cardoza & Richardson, 443.. V. Cilley, 1386. V. Dubuclet, 438. V. Givens, 1345. V. Green, 1524. V. Humphreys, 1346. ®. Huff, 437. 11. Madison, 1522. «. Peck, 856. V. Polk, 1387. V. Potter, 856. V. Saline Co., 1585. V. Stratton, 1395. V. Sullivan, 1534. «. Sutterfleld, 1535a. V. Taylor, 63. V. Town of Clark, 1524. V. Trustees of Union Township, 1545. 11. Van Home, 1545, 1548, 1685. V. Wenkelmeier, 1535a. B'k V. Ayres, 1034. ». B'k of Capitol, 381. 11. Coquillard, 767. v, Evans, 856. V. Fearing, 672, 1357. . ». Hayes, 9. 11. Hennen, 1016. 11. Hurd, 689. 11. Kain, 392. 11. McCoy, 214. V. Napier, 656, 657. V. Slaughter, 999. V. Stratton, 150. 11. Wheeler, 393. of Arkansas v. Little Rock, &c. R. R., 1551. la. 11. Wappelo Co., 1533,1560,. 111. 11. Delafleld, 441, 443, 444. Me. 11. Boies, 443, 1189. Mo. V. B'k of Mo., 441. Capitol B'k ii. Thompson, 69, 70. Savings Association v. Hunt, 824. Steadmau v. Duhamel, 14. Steamboat Charlotte v. Hammond, 1260, 1267, 1382. Stearns v. Burnham, 884. Stebbing v. Spioer, 100. Stedman ii. Gooch, 1019, 1272. Steel V. Davis Co., 430. Steele v. Curie, 885. n. McDowell, 263. Stein V. Mobile, 1522, 1-523. 11. Yglesias, 734, 725, 736. Steines ii. Franklin Co., 1536,1559,1548, 1550,1551, 1558,1560,1564. Ixxviii Thi references] TABLE OF OASES. [areto the sections. Steinbeck b. Treasurer, &c., 437. SteinmaD «. Maguas, 1331. ». Mobile, 1533. Steinweg v. Erie R. R. Co., 1733, 1740. Steraan ». Harrison, 550, 551. Stephen ». Thompson, 1395. Stephens v. Spiers, 196. Stephenson «. Dickson, 1041. V. Primrose, 1018, 1133. Sterling ». Marietta, &c. Co., 393, 1334, 1336. Sterry i\ Robinson, 929. Stevens 'o. Androscoggin "Water Power Co., 513. ■K. Beals, 354, 681. «. Blunt, 43. ■B. Boston, &c. R. R. Co., 1733, 1737. !). Campbell, 833. ■0. Chadwick, 1381. V. Graham, 1376, 1384, 1S86, 1401. V. Lynch, 1148,1158,1161,1331. V. Stevens, 34. 11. Strong, 139. Stevenson v. O'Neil, 700. V. Unkefer, 766. Stewart ®. Ahrenfeldt, 196. v. Allison, 587. ». Earl of Galloway, 188. «. Eden, 588, 640, 1001, 1035, 1029, 1049, 1310, 1333. V Ellice, 930. s. Hidden, 1285. V. Jenkins, 249. t). Kennett, 988, 990. V. Lispenard, 311. V. Lord Kirkwall, 347. «. Salamon, 87. i). Smith, 738, 1587, 1652. Stickney «. Mohler, 187. Stiles ■». Eastman, 1335. Stilwell J). Craig, 47. Stivers v. Prentice, 590, 635. Stix ». jMathews, 879, 995, 1045. Stocken v. Collin, 983, 1053. Stockman v. Parr, 978. Stockwell I'. Bramble, 491. Stoddard v. Kimball, 757, 790, 837, 833. t). Penniman, 176. Stokes t). Lewis, 183. Stone «. Chamberlaine, 370, 1300. V. Marsh, 1612. •p. Metcalf, 112, 153, 154. v. Peake, 203. ». Seymour, 1153. «. Smith, 207. ti. Talbot, 1 253. Stoneman v. Pyle, 62. Stoner v. Ellis, 1418. Stoney v. American Life Ins. Co., 3S9. Stontenburg «. Lvbrand, 196. Storeri). Logan, 550, 551, 553, 554,561. Story V. Atkins, 163. Stothart n. Parker, 611, 1173. Stott D. Alexander, 1035. Stout K. Ashton, 1479. v. Bendish, 1700. V. Benoist, 1301. !). Cloud, 1401. Stover «. Hamilton, 88. Stow f>. Tarwood, 1433. Stowell D. Raymond, 713. Strachan v. Muxton, 79. Straker «. Graham, 466, 474. Strang v. Wilson, 1317. * Strange v. Wigney, 1463. Stratton v. Allen, 383. Strawbridge s. Robinson, 12. Streeter ®. Poor, 284. Strieker v. Tinkham, 879. Strickland ji. Railroad Co., 1523. Stroh «. Hickman, 296. Strohecker v. Cohen, 568. Strong 1). Poster, 1337. %. Hart, 1271. ». Jackson, 835. Stmthers «. Kendall, 1399. Stubbs ». Goodall, 719. Stuber«. Schack, 1317. Stump V. Napier, 1217, Stuckert v. Anderson, 654. Studenmire «. Ware, 185. Stnrdivant v. Hull, 404. Sturdy s. Henderson, 626, 1671. Sturges v. Keith, 286. Sturgis 4). B'k of Circleville, 393. ». Crowninshield, 875. ». Derrick, 1115, 1130. s. Fourth Nat. B'k, 504. Sturtevant v. City of Alton, 1533. ®. Ford, 736. 41. Liberty, 435. Succession of Weil, 674. Suckley v. Furse, 13^8. Suffolk Banki). Lincoln B'k, 1685, 1686. Sullivan v. Deadman, 698, 962, 1684. v. Morrow, 1311. Summerhill ». Tappo, 1335. Summers v. Mills, 918. Sumner d. Bowen, 968. 4). Sumner, 196. Supervisors v. Schenck, 317, 319, 386, 389, 391, 1500, 1523, 1537, 1543, 1545, 1546. Suse ». Pompe, 669. Susong r>. Williams, 127. Susquehanna B'k v. Evans, 717. Sussex B'k «. Baldwin, 572, 636, 637, 640, 993, 1039, 1106. Therefa-meet\ TABLE OF GASES. {a/re to the eecticms. Ixxix Sutcliffe V. McDowell, 1079, 1081. Sutliff«. Att wood, 1260. Sutton «. Toomer, 619, 1385. V. Warren, 254. Suydam v. Westfall, 95, 1236. Swall V. Clarke, 769. Swan V. Hodges, 1130. V. Nesmith, 314. V. North Brit. Austr. Co., 851. v. Steele, 356. Swanell v. Watson, 850. Swansey v. Breck, 518. Swanzey v. Parker, 731. Swartz 1). Redfield, 996. Swasey «. Vanderheyden, 225. Swayne ». Britton, 929. Swayze v. Britten, 960, 987, 991. Sweat V. Hall, 1184. Sweeney v. Easter, 336, 698. !). Thickston, 61, 62. Sweet V. Carver Co., 429, 432. V. Chapman, 751. v. James, 1382. V. Titus, 1623. Sweeting v. Fowler, 100. V. Halse, 549. Sweetlar.d u. Creigh, 56. Swift V. Stevens, 1471, 1478. V. Tyson, 10, 174, 183, 184, 775, 829, 881, 1503. 1). Whitney, 66. Swilley v. Lyon, 95. Swinyard v. Bowes, 1176, 1262, 1271. Swire ». Redman, 1312, 1837. Swope V. Ross, 480. Sykes v. Giles, 1270, 1271. V. Lewis, 1431. Sylvester v. Downer, 710, 712. Syme v. Brown, 703. Symonds v. Parminter, 1205. Syracuse B'k ii. Davis, 1565, 1588. Syracuse, &c. R. R. Co. ■». Collins, 1260, 1589, 1590, 1591. Taber n. Cannon, 294. Taft's Case, 1345. Taft v. Brewster, 307. v. Pittsford, 422. V. Sergeant, 235. Talbot «. B'k of Rochester, 1864. ■c. Dent, 1523. ■B. Gay, 1787, 1788. Tallerand ii. Boulanger, 886, 907. Tancil v. Seaton, 1672, 1674. Tannant t>. Rocky Mountain Nat. B'k, 298. Tanner «. Christian, 299. Tapley v. Martens, 1623. Tappan «. Ely, 152. Tarbell v. Sturtevant, 1192. Tardy v. Boyd, 305, 1064, 1070, 1147, 1163. Tarin v. Morris, 1285. Tarleton «. Allhusen, 1384. 4). Southern B'k, 317, 218. Tash ». Adams, 391. Tassel v. Cooper, ] 642. «. Lewis, 616, 627, 748, 1827. Tassey v. Church, 513. Tate ». Hilbert, 26, 491, 1618. V. Sullivan, 963. Tatlock e. Harris, 23, 136, 137, 747. Tatum V. Kelly, 200. Taunton B'k v. Richardson, 1048, 1106. Taup ». Drew, 1245. Taylor®. B'k of 111., 954. e. Beck, 807, 1217. V. Binney, 1782. «. Bowles, 769. V. Breden, 612. 1). Brjggs, 740, 1371. V. Bruce, 191, 752, 763. V. Burgess, 1334. i;. Craig, 854. 1). Croker, 93, 227, 228, 535, 683 e. Curry, 797. 1). Dobbins. 74. V. Drake, D69. «. French, 1106, 1134, 1139. «. Higgins, 1205. ■V. Hillyer, 366, 369. «. Jacoby, 636. B. Jones, 1152, 1158. V. McCune, 718. V. Moseley, 1879. 1). Page, 834. B. Reese, 1190, 1197, 1351. i>. Ross, 1765. V. Sanford, 1250. «. Shclton, 307. V. Sip, 1578, 1587. «. Snyder, 640, 1133, 1145, 1180. ■e. Surgit, 367. V. Taylor, 1535». ». Thomas, 68. !). Wetmore, 1785. V. Williams, 1633. «. Young, 1086, 1595. Tebbetts «. Dowd, 1148, 1153, 1156, "1157. Teed v. Elworth, 337. Temple v. Seaver, 683. Ten Eyck ». Vanderpoel, 370. Tenney i). Prince, 694, 1760. Tensen «. Francis. 726. Terbell ». Jones, 1055. Terry?). .A Ills, 741. ' V. Farago, 294. r. Hazlewood, 1373. V. Parker, 1047. Ixxx The refer en-oe&l TABLE OF CASES. {a,-e to the sections. Tevis V. Young, 92. Texas ». Hardeuberg, 441, 724, 782. V. White, 441. Texira v. Evans, 148. Thackeray v. Blockett, 1079, 1172, 1464. Thame v. Boast, 1235. Thatcher v. B'k of the State, 389. r. Diusmore, 186, 271, 1260. ». West River Nat. B'k, 189, 790. Thayer i'. Biiffum, 1188. V. Crossman, 1217. ,\ Elliott, 867. 0. King, 1478, 1482. V. Manly, 776. c. Jliddlesex Mut. Ins. Co., 388. r. Montgomery Co., 1493. The Confederate Note Case, 87. David and Caroline, 1741. Distilled Spirits, 803. Hampton, 218. Invincible, 1741. Juniata Paton, 1741. J. W. Brown, 1739. Kimball, 1260. Lady Franklin, 1739. Loan, 1733. May Flower, 1733. Olbers, 1742. Oni-ust, 1742. Oriflamme, 1743. Prize Cases, 218. Rebecca, 1748. Sally Magee, 1743. Santee, 1739. Thames, 1735, 1740,1751. Vaughn, 1751. Venice, 318. William Bagaley, 218. Thetford v. McClintock,.300. Thicknesse r. Bromelowe, 361. Thiedemann r. Goldsmith, 174. ThJel V. Conrad, 643. Thimbleby v. Barron, 1391. Thing V. Libbey, 334. Third Nat. B'k ». Allen, 1372, 1661. ». Ashworth, 1148. V. Clark, 721. Thomas v. Bishop, 413. V. Hewes, 306. V. Kinsey, 724. i\ Leland, 1556. V. Mavo, 1095. ('. Newton, 816. c. Port Huron, 1523. ■5. Shoemaker, 624. ». Thomas, 174. V. Todd, 737, 1672, 1675, 1676. 13. Watkins, 667. Thomason v. Boyd, 234. Thompson v. Armstrong, 816. V. Briggs, 1300. V. Brown, 1253. 1). City of Peru, 1524. V. Commercial B'k, 657. V. Cumming, 930. ». Downing, 1748. V. Emeiy, 747. «. Flower, 570, 1205. i\ Gray, 1338. V. Hoagland, 76. V. Ketchum, 80, 88, 599, 639, 879, 880, 893. V. Lay, 233. V. Lee Co., 389, 391, 1489, 1497, 1500, 1509, 1513, 1514, 1530, 1523, 1537, 1557, 1560, 1561. V. Percival, 1289, 1299. ■V. Perkins, 813. r. Pickel, 1458a. V. Pitman, 1646, 1648. V. Posten, 790. V. Powles, 918, 933. V. Shepherd, 730. v. Sloan, 58. V. Warren, 173. V. Wharton, 188. V. Williams, 972, 973, 975, 979, 996. V. Wilson, 884. Thorington v. Smith, 87, 169. Thorn v. Rice, 1013. Thornton v. Dick, 490. V. Illingworth, 330. i>. Maynard, 1337. J). Rankin, 371. V. Wynn, 203,1091,1147,1149, 1153. Thorp V. Craig, 879. Thrall v. Horton, 797. Thrash v. Ely, 1785. Thrasher ■». Everhart, 33, 885. Thrupp V. Fielder, 330. Thurman v. Van Brunt, 1305, 1648. Thurston v. Munn, 808. Ticknor b. Roberts, 909, 948, 1149. Ticonic B'k i\ Stackpole, 9, 928, 963. Tidmarsh v. Grover, 1378. Tiernan v. Commercial B'k, 343. V. Jackson, 451. Tiernan's Exrs. v. Woodruff, 1313. Tiller ». Spradley, 398. Tillinghast v. Wheaton, 34. Tillon ». Clinton, &c. Mut. Ins. Co., 1420. Timmins v. Gibbons, 740, 1260, 1679. Timms v. Delisle, 1005. 1015. Tindal v. Brown, 612, 972, 985, 987, 990, 1037, 1175, 1590. The references] TABLE OF OASES. [are to the secUona. Ixxxi Tinker v. MoCauley, 716, 1776, 1779. Titcomb v. Thomas, 748. •Tittle V. Thomas, 100. Titus V. Great Western Tump. Co., 1611. Tobey v. Barber, 1264, 1367, 1373, 1376, 1378. V. Berly, 1048. V. Chipman, 859. 1). Lennig, 979. Todd 1). Ames, 349. 1). B'k of Ky., 881, 896, 1381, 1383. V. Edwards, 1015. V. Lee, 348, 350. V. Neal's Adm'r, 9, 908, 909, 911, 934, 1050. V. Shelbume, 758. Toledo Iron and Agr. Works v. Heisser, 301. 805. Tombeckbee B'k ». Dumell, 870. V. Stratton, 1311. Tompkins v. Ashby, 36, 40. V. Mitchell, 1381. 11. Woodward, 865, 366. Toms V. Powell, 1335. Tonee v. Parkersburg E. R. Co. 890. Took «. Tuck, 194. Tooke V. Bonds, 1351. «. Newman, 883. Tootle, ex parte, 41. Torbett v. Worthy, 207. Torrey v. Baxter, 1360. V. Dustin Monument Ass., 394. V. Foss, 1085, 1485. V. Hadley, 1364. Touchard v. Touchard, 1527. Tourner ti. Dickinson, 1311. Tower v. Appleton, 1694. V. Durell, 1140. V. Richardson, 81, Towers v. Moor, 1398. Town of Cicero v. Olifiord, 1509. Coloma V. Eaves, 1537, 1530, 1543. Danville v. Pace, 1565. 11. Sutherlin, 752, 1538, 1534. Eagle v. Kohn, 197, 807, 1551. East Lincoln v. Davenport, 1537, 1550. Genoa v. Woodroofif, 1518, 1537, 1552. Middleport v. .(Etna Life Ins. Co., 1538. Queensbury v. Culver, 1521, 1523, 1556. South Ottawa ii. Perkins, 1520, 1538. Venice «. Murdock, 1537. Towne v. Rice, 51, 403. Vol. I.— F Townsend v. B'k of Racine, 737, 751, 1676. V. Derby, 108. ». Lorain B'k, 939, 983, 984, 985. Township of Burlington v. Beasley, 1533. East Oakland v. Skinner, 1588. Elmwood V, Many, 1535. Pine Grove v. Talcott, 10, 433, 1521, 1528, 1524. Townsley v. Sumrall, 184, 449, 454,465, 569, 570, 909, 945, 959. Trabue ii. Short, 899. Traflford v. Hall, 725. Train v. Jones, 1785. Transportation Co. v. Downer, 1741. Trapp i>. Spearman, 1878. Trask v. Martin, 617. Treadwell «. Commiss., 1550, 1551. Trebilock v. Wilson, 1345, 1347. Trecothick v. Edwin, 1383. Tredick v. Wendell, 654. Treuttel «. Barandon, 283, 283, 698, 699. Trickey v. Lame, 203. Trier v. Bridgman, 163. Trigg ». Taylor, 1408. Trimbey v. Vignier, 867, 883, 906. Trimble ». Thorn, 1153, 1304, 1305,1339. Triplett v. Hunt, 987. Tripp V. Curtinus, 1703, 1703, 1707. ». Swanzey Man. Co., 387. Tritt V. Coldwell, 354. Troy 11. Topping, 363. Troy City B'k v. Lauman, 515, 1380. True 11. Collins, 1039. V. Fuller, 1776. 11. Thomas, 1586, 1595, 1639. Trueman ii. Fenton, 183. Trufee «. Alden, 800. Trull V. Meneton, 125. Trunday «. Parrar, 817. Trustees of Schools «. McCaughy, 1565. V. McCormick, 316, 833. V. Parks, 1188. Tryon v. Oxley, 362, 1612. Tuber ii. Caverly, 1099. Tucker «. Bradley, 67. 11. City of Virginia, 1527. 1). Fairbanks, 409. 11. McCauley, 1779. 91. Randall, 1313. V. Rouk, 196. Tuckerman ii. French, 1785. V. Hartwell, 154. V. Newhall, 1394. Ixxxii mr«/6«ftce«] TABLE OF CASES. [are t<, tU sections. Tudor V. Godloe, 1317. Tunno v. Lague, 1066. Turber ». Caverly, 1099. Turk V. Richmond, 196. Turnbull v. Block, 1327. ■B. Bowyer, 1113. ». Freret, 268. V. Hill, 1153. 11. Strohecker, 1425. c. Ttomas, 74. Turner v. B'k of Pox Lake, 1625. ■V. Billagram, 1416. ». Browden, 170, 534. V. Brown, 176, 181. u. Keller, 673, 676. V. Leach, 988, 1045, 1137, 1234. t). Mead, 655. D. Rogers, 185, 936, 963. ■B. Stones, 1679. Tumiss 11. Gilchrist, 885. Turpin n. Thompson, 24. Tutt V. Hobbs, 1564. Tuttle 11. Bartholomew, 1783. v. Fowler, 357. e. Mayo, 1687. n. Standish, 1476, 1481. Twopenny v. Young, 548, 1291, 1296, 1338. Tye V. Gwynne, 201. Tyler ii. Gould, 1644. V. Young, 61 '. Tyson v. Oliver, 1007, 1023, 1030. v. School Directors, 1556. V. State B'k, 824, 339. TJbsdell 11. Cunningham, 43. Ulster Co. B'k ii. McFarland, 561, 1756, 1799. Underbill v. Phillips, 108. Underwood ii. Simonds, 81. Unger v. Boas, 674. Union B'k v. Beime, 275. ». EUicott, 1689. V. Ezell, 611. 11. Fowlkes, 953, 959. v. Grimshaw, 1162. 11. Hyde, 936. 968, 1095. 11. Magruder, 1100. v. Ridgeley, 389. v. Smiser, 1260. V. Stone, 1056. V. Warren, 1478, 1695. v. Willis, 455, 594, 999, 1757. Union Ins. Co. «. Greenleaf, 41. Nat. B'k «. Cooley, 1311. v. Marr. Admr., 1061. 11. Ocean Co. B'k, 1637. Trust Co. B. Monticello, &c. R. R, 1491. U. S. 11. B'kof Ga., 1672, 1688. n. B'k of Metropolis, 174, 436, 437, 512, 516, 547. V. B. & O. R. R. Co., 1519. 11. Barker, 217, 438, 454, 478, 932, 1039, 1041. n. Boyce, 1189. 11. Co. of Clark, 1491. v. Cushman, 1396. 11. Grossmeyer, 322, 106O. V. Hodge, 1328. V. Huckabee, 857. n. January, 1350. n. Kirkpatrick, 1250, 1353. V. Lapine, 222. V. Leffier, 1317. 11. Linn, 1391. v. Morrison, 1525. 11. Rabbitt, 1527. n. Sill, 1696. V. Simpson, 1311, 1839. V. Spalding, 1373. 11. White, 99, 104, 106. U. S. B'k n. Binney, 357, 363. n. Carneal, 601. v. Russell, 1874. V. Southard, 1149, 1156. U. S. Express Co. ». Haines, 135. Updegraft v. Edwards, 834. Upham 11. Prince, 700, 1782, 1783. Urton V. Hunter, 875. Usher ». Dauncey, 143, 872. 11. Gaither, 1472. Uther V. Rich, 770, 774. Utica B'k v. Ganson, 1190. Ins. Co. V. Kip, 204. Valentine v. Foster, 183. 11. HoUoman, 686. V. Packer, 283. Valette v. Mason, 758, 833. Valk v. Gaillard, 998. V. Simmons, 1081, 1596. Vallett c. Parker, 197, 369, 807,808,813. Valpy 11. Oakeley, 1380. Van Alen v. American Nat. B'k, 326. Amee v. B'k of Troy, 387, 339, 340. Auken v. Hornbeck, 1473, 1482. Vaubibben ii. B'k of Louisiana, 1637. Van Brunt v. Singley, 849. Vance v. Collins, 1005, 1387. n. Lowther, 1658. n. Wells, 240. Vancleef v. Therasson, 874. Vaudenburg v. Hall, 350. Vanderpool ii. Brake, 859, Vanderveer v. Wright, 1784. Vandewall v. Tyrrell, 580, 941, 1254, 1258. Van Doren v. Tjader, 713. 77ie rtfereru:es2 TABLE OF CASES, [are to the sections. Ixxxiii Van Duzer v. Howe, 147, 540, 1405. Eman «. Stanchfleld, 741. Epps V. Dillaye, 1272, 1399. Hoesen ». Van Alstyne, 996. Hostrup V. Madison City, 1540. Keuren v. Parmelee, 374. Ness V. Forrest, 1189. Patton V. Beals, 310. V. Marks, 313. Raugh V. Van Arsdain, 875. Eeimsdyck «. Kane, 568. Eensselaer's Ex'rs -v. Roberts, 1253. Schaack v. Stafford, 751. Sohaick ®. Edwards, 867, 933. Steenburgh «. Hoffman, 240. Vechten », Pruyn, 1016, 1025, 1033. Wart V. Woolley, 329, 476, 564, 995, 1176, 1363, 1788. Wickle V. Downing, 1149. Vanzant v. Arnold, 877. Varin ». Hobson, 774. Varner «. Nobleborough, 161, 430, 1360. Varnum v. Milford, 803. Vastine «. Wilding, 1701, 1702. Vater v. Lewis, 93, 101, 415. Vathir v. Zane, 166, 177, 815, 816. Vatterlien v. Howell, 830, 832. Vaughn v. Ferrall, 859. V. Fuller, 1165. Veali). Veal, 24. Veazie v. Carr, 1305. Veazie B'k v. Paulk, 751. B. Winn, 13)0, 1590. Veeder v. Town of Lima, 1550, 1553, 1553, 1555. Vere «. Lewis, 136, 137. Vermilye ®. Adams Express Co., 353. Vernon v. Manhattan Co., 853. Vertue v. Jewell, 1749. Vioarro v. Toof, 350. Vidal V. Thompson, 908, 915. Viele V. Hoag, 1323. Vila v. Weston, 1199. Vilas V. Jones, 1317. Viles V. Moulton, 1471. Vincent ». Horlock, 688, 1195. Vinton v. King, 787. V. Peck, 69, 758a. Violett «. Patton, 189, 694, 843, 1765. Va. V. Ohes. & Ohio Canal Co., 1500, 1513. Va. Sav. B'k v. Gibson, 451. Va. & Tenn. R. R. Co. i). Clay, 1490, 1494, 1500, 1511, 1513. Vischer v. Webster, 1406. Vogle V. Ripper, 1373, 1410. Voltz». Harris, 1786, 1788. Vore V. Hurst, 716 Toss V. Robinson, 1750. Vreeland d. Blunt, 33. ». Hyde, 607, 609. Wackerbath, ex parte, 531, 530, 1255. Waddill V. Alabama R. R. Co., 384. Wade ®. New Orleans Canal, &c. Co., 1484, 1694. V. Staunton, 1338. V. Wade, 701, 1483. Wadlington v. Covert, 50. Wadsworth v. Allen, 1788. V. Sherman, 313. Wagman v. Hoag, 1322. Wagner v. Diedrich, 146, 790. V. Kenner, 624, 625. Wain t). Bailey, 1475. V. Walters, 1764. Wainwright v. Webster, 737, 1676. Wait IK Pomeroy, 149, 150, 1397, 1407. Waithman v. Elzee, 39. Wake 11. Tinkler, 1434. Wakefield d. Greenhood, 576. Walbridge «. Harron, 183. Waldo B'k i). Lambert, 368. Waldron ». Young, 143. Waldrop «. Dunlop, 575. Wales V. Webb, 307. Walker v. B'k of Augusta, 1015. V. B'k of Mo., 979, 1015. v. B'k of N. Y., 307, 414, 511, 1341, 1381. «. Christian, 445. ». Clay, 80. V. Dement, 834. V. Ebert, 849. ■V. Eyth, 1438. V. Forbes, 1785. V. Hamilton, 1449. ». Laverty, 1151. V. McDonald, 696. B. Patterson, 363. V. Rogers, 1147, 1149. V. Stetson, 454, 1036, 1058. V. Tunstall, 1037. V. Turner, 939, 960, 961, 1055. V. Walker, 1133. V. Warfleld, 112. Wall's Case, 1346. Wall i: Bry, 1091, 1093, 1095, 1102. Wallace v. Agry, 454, 465, 466, 470,473, 943, 983. «. Branch B'k, 383, 753. i>. Hard acre, 196. V. Harmstad, 1410. V. Jewell, 1387. ■E. Kelsall, 1438. 9). Mayor of San Jose,1550,1551. V. McConnell, 334, 530, 643,645, 1303. V. Tellfair, 330. Ixxxiv TherefenncM\ TABLE OF CASES. iare to the seoUons. Waller v. Tate, 747. Walley v. Montgomery, 1736, 1745. Wallis B. Littell, 721. Wallridge «. Arnold, 196. Walmsley ». Aoton, 951. ». Child, 1466, 1471. 11. Cooper, 1291. ». Rivers, 962. "Walpole V. Ellison, 1414. ■V. Pulteney, 544. Walrad v. Petrie, 103, 168. Walratb %. Thompson, 1756. Walsh J). Batchley, 463. V. Dart, 472, 617. Walter v. Cubley, 1399. «. Haynes, 1029. ». Kirk, 1209. Walters v. Brown, 1008, 1009, 1116. v. Munroe, 1140. ». Short, 1418. Walton V. Bemiss, 1260. V. Hastings, 1376. D. Mascall, 827. ». Shelly, 1317. Walton V. Williams, 128. Walwyn «. St. Quintin, 1076,1077,1203, 1237, 1827. Walz 9. Alback, 710, 713. "Wamsley ». Lindenberger, 225, 330. Wanger v. Tupper, 926. Ward ». Allen, 497, 505, 540. J). B'k of Ky., 291. v. Bourne, 1260. ». Churn, 63, 856. ■V. Evans, 1362, 1623, 1679. v. Howe, 874. 11. Johnson, 1396. t). Lewes, 856. «. Northern B'k, 656. V. Periin, 1032. r. Smith, 218, 324, 325, 326, 334. «. Turner, 24, 26. v. Vass, 1811. Warden v. Howell, 792, 794, 826. Wardens of St. James' Church «. Moore, 125. Warder ». Arell, 9, 874. D. Tucker, 1083, 1148. Wardrop ». Dunlop, 323. Ware ». Street, 737, 1677, 1685. Waring «. Smyth, 1373. Warner ®. Beardsley, 1305. V. Spencer, 1396. Wamick v. Crane, 584. Warren «. Brown, 56. r. Chapman, 304. •0. Coombs, 9, 1455. «. Gilman, 985, 1005, 1329. . ». LaytoD, 1411, 1418. V. Lynch, 33, 885. Warren v. Scott, 105. B'k V. Suffolk B'k, 341. Warrington v. Early, 149, 1385, 1897. ». Furbor, 1172. Wartman v. Yost, 1422, 1426, 1429. Warwick v. Bruce, 337. V. Nairn, 303; v. Noakes, 287, 814, 1474. Washburn v. Picot, 203. Washington Co. Mut. Ins. Co. v. Miller, 47. Sav. B'k 4). Ekey, 1406. Waterbury v. Sinclair, 713. Waterman ». Vose, 1385. Waters B. B'k of Ga., 1693. D. Brown, 1116. Watervliet B'k ®. White, 417, 1188. Watkins v. Crouch, 643, 644, 1138, 1130, 1131,1133,1135,1136,1137, 1173. B. Halstead, 340. «. Hill, 1366. «. Hopkins' Ex., 14 34. V. Maule, 360, 367, 680,685,744. Watson v. Cabot B'k, 834. V. Flanagan, 174, 738, 803. ■c. Heasel, 234. V. Hoag, 861. -5. Hurt, 709, 713. •D. Kahn, 679. V. Loring, 930. «. Reynolds, 186. v. Tarpley, 449. V. Templeton, 418. Watson's Exrs. v. McLaren, 1767, 1797. Watt «. Riddle, 1450. Wattrous v. Halbrook, S6. Waugh «. Russell, 1407. Way v. Butterworth, 649, 715. v. Lamb, 725. v. Richardson, 81.S. V. Sperry, 182. Waydell ». Luer, 1299. Wayland v. Mosely, 1729. Wayman ». Bend, 663. •0. Torreyson, 135. Weakly v. Bell, 1034, 1116, 1366. Weathered v. Smith, 809. Weatherwax ®. Paine, 713. Weaver «. Borden, 833. Webb V. Fairmauer, 617, 1208. D. Mears, 454. Webber ». William's College, 294. Webster «. Calden, 728. ■d. Cobb, 713, 1777. v. De Tastat, 330. t). Lee, 738. v. "Vickers, 1317. Weed v. Bond, 806. ». Carpenter, 689. The references] TABLE OF CASES. [are to the secUms. IxXXV Weggersloffe v. Kerne, 516. "Weinstock v. BellwooJ, 23, 1637. "Weisser v. Dennison, 288, 1370. Weismer v. Village of Douglas, 1532, 1547. "Weith V. City of Wilmington, 1500. Welby V. Drake, 1289. Welch «. Allington, 1360, 1266. V. B. C. Taylor Manf. Co., 1074. V. Goodwin, 1369, 1372. V. Lindo, 576, 700, 1198, 1227. V. Sage, 775. Weld t'. Qorham, 658. Welland Canal Co. «. Hathaway, 891. Wellington v. Jackson, 1352. Wells V. Brigham, 104, 518, 1579. V. Evans, 868. ». Hopkins, 208. V. Jackson, 717. «. Masterman, 863, 488. V. Shoonover, 1192, 1200. 1]. Tucker, 34. V. Wade, 1482. V. Whitehead, 9, 114, 117, 943. Welsh ». Barrett, 967, 1057. Welton V. Adams, 1478,1481,1694,1703. Wemple v. Dangerfleld, 1039, 1041. Wendt V. Ross, 1353. Wenman «. Mohawk Ins. Co., 1315. Were v. Taylor, 187. West V. Brown, 637, 1041. V. Porman, -"iO. D. Penny, 230, 231. Branch B'k ». Pulmer, 333, 337, 1088. St. Louis, &e. B'k v. Shawnee, &c. Bank, 393. Western B'k v. Mills, 177. Boatman's Benev. Ass. ». Wolff, 710,713. Westfall V. Braley, 737, 1676. Westgate «. Healy, 1181. Westminster B'k v. Wheaton, 1573. Weston ». City of Charleston, 135. V. Barker, 747. ». Hight, 34, 1473. Wetherall v. Claggett, 967, 969. ». Ela, 1198. Wetherell e. Joy, 1351. Wethey ». Andrews, 608. Wetumpka, &c. R. R. Co. v. Bingham, 425. Whaley v. Houston, 964, 1596. Wharton v. Morris, 56. Whatley v. Trickcr, 543. Wheat ». Arnold, 1418. V. Kendall, 1338. Wheatley v. Strobe, 15, 19, 125, 1644. Wheaton i>. Wilmarth, 983. Wheeler v. Field, 1058, 1116, 1117, 1145. Wheeler v. Gould, 1618. ». Guild, 1227, 1328, 1333, 1461. ■0. Johnson, 1191, 1200. ». Newbold, 833. V. Slocum, 827. «. State, 991. «. Warner, 606, 1215. 11. Webster, 97, 486, 497, 606. v. Wheeler, 266, 685, 741. Wheelock «. Freeman, 79, 1347, 1397, , 1410, 1412. Whetstone ». Colley, 1247. Whinston v. Stodder, 868. Whistler v. Foster, 706, 745, 1578. Whitaker v. B'k of England, 603. «. Brown, 359. 1). Edmunds, 165, 814. V. Groover, 1250. V. Hartford, &c. R. R. Co., 1514. ■0. Morrison, 1165, 1168. 11. Whitaker, 187, 356. Whitcomb v. Whiting, 374. V. Williams, 1360. White v. Banister's Ex'rs, 1433. V. Canfield, 886. V. Casanove, 1381. V. Case, 1769. B. Continental Nat. B'k, 533, 538. 540, 1359, 1361, 1363,1364, 1373. ®. Dougherty, 1381. v. Ford, 1431. V. Hart, 173. V. Hass, 1418. V. Heylman, 196, 743. v. Hopkins, 1307, 1385. V. Howard, 1267. V. Howland, 1780. v. Kebling, 1333. V. Ledwick, 108. V. Madison, 307. V. McNett, 248. ». Palmer, 1231. V. Richmond, 56. v. Smith, 41. V. Springfield B'k, 827. n. Stacker, 1785. V. Stoddard, 578, 994, 1135, 113ft, 1177. D. Story, 348, V. Trumbull, 1351. V. Tudor, 373. ■B. Yt., &c. R. R. Co., 148, 1499, 1500. V. Wardwell, 183. V. Weaver, 713, 738. Whiteford «. Burckmeyer, 1003, 1191. 1300. Whitehead v. Walker, 734, 735, 1486. Ixxxvi Therefennceil TABLE OF CASES. {are to the seeiions. Whiteliouse i). Hansen, 713, 717. Whitelocke v. Musgrove, 1318. Whiteman n. Sheckle, 135. Whiteside v. Northern B'k, 1377. V. U. S. 440. White Water Valley Canal Co., 383. Whitfield v. Savage, 1077. Whitlock V. Underwood, 88, 599. Whitman 1>. Farmers' B'k, 983, 1045. t). Leonard, 371, 374. Whitmer w. Fi^e, 1385, 1410, 1413. Whitne-p ». Abbott, 1104. V. Bunnell, 533, 1755. i>. Dutch, 231. ■». Esson, 1635. V. Going, 1339. V. Grost, 1755. «. Merchants' Union Express Co., 348. V. National B'k, 781. V. Snyder, 848, 850. AVhitridge v. Rider, 1116. Whittenberger ■!). Spalding, 581. Whitti-nhall v. Korber, 1198. Whittier v. Eager, 187. 11. Graffam, 1123, 1145. V. Ilayden, 1195. Whittle ». Skinner, 1389. Whitwell V. .Tohnson, 658. Whitworth v. Adams, 191, 750, 751, 752, 753, 756, 757, 760, 763, 763, 765. Wickersham B. Jarvis, 1198. Wickham v. Wickham, 314. Widgery v. Mmiroe, 658, 1145, 1146. Widoe «. Webb, 304. Wieman v. Anderson, 250. Wiflfen 1). Boberts, 746. Wiggin V. Bush, 775. s. Damrell, 747. Wiggle V. Thompson, 1212. Wigglesworth v. Steers, 214. Wilbur r. Lynde, 383. v. Selden, 1057. Wilburn «. Greer, 56. "Wilcombeu. Dodge, 1309. Wilcox V. Roath, 332, 998. Wilcoxen v. Reynolds, 87. Wild V. B'k of Passamaquoddy, 388, 391, 687. Wilda V. Armsly, 1418. Wilder v. DeWolf, 130, 663. V. Seelye, 1481. Wildes V. Savage, 551, 561, 1785, 1788. Wildman, ex parte, 1303. Wiley v. First Nat. B'k, 386. V. Knight, 803. WilkensoD v. Jeflfers, 735. Wilkes «. Jacks, 1083. Wilkins «. Com. Bank, 99,8. Wilkins v. Jadis, 603, 1160. Wilkinson «. Adams, 982. ». Cook, 172. V. Johnson, 528, 533, 549, 1357. V. Ludwidge, 533. Willenberger v. Spalding, 586. Willets ». Phcenix B'k, 1571. Willett V. Shepherd, 1418. Willey «;. Greenfield, 432. Williams v. Ayres. 129. «. Bacon, 303. V. Baker, 76. e. B'k U. S., 1005, 1016, 1023, 1117, 1119. ■V. Brashear, 1076. i>. Brobst, 1105, 1110. 1). Cheney, 808. D. Drexel, 538, 1365. «. Everett, 19. v. Floyd, 113. V. Germaine, 527, 529, 531. 11. Gilchrist, 1425. ffl. Haynes, 885. V. Hoogewerff, 637. «. James, 1305, 1341. v. Johnson, 688. V. Jones, 884, 11. Mathews, 572, 998, 1048. V. Moore, 330. 11. Nicols, 186. V. Price, 1311. V. Putnam, 909, 910, 938, 900. V. Bobbins, 303, 305. V. Robinson, 1165. V. Sims, 55. V. Smith, 758, 834, 832, 1696. V. Storm, 751. 1). Thomas, 358. B.Union R. R., 1149. V. Wade, 899, 900. 1). Wallbridge, 366, 369. V. Waring, 1370. v. Winas, 491. Williamson ». City of Keokuk, 1538. V. Harrison, 235. 11. Johnson, 361, 688, 1613. V. New Albany & Salem R. R. Co., 1509. 11. Smith, 86, 1244. 11. Watts, 235. Willis v. Barrett, 1 00. V. Cresey, 1478. 11. Green, 455, 594, 999. Willison V. Pattison, 217, 678, 814. Wilmington, &c. R. R. n. King, 87. Willoughby «. Moulton, 74. ■ V. Willoughby, 103, Wills B. Wilson, UOl. Willsey v. Hutchins, 248. Therefermce8\ TABLE OF OASES, [aretothe secUom. Ixxxvii "Wilson V. Bartrop, 306. V. Black, 719. 11. Casey, 124. V. City of Shreveport, 1530, 1538. v. Clements, 550, 551, 553, 558. V. Codman, 700, 1431. V. Dawson, 336. ». Forder, 370. V. Harris, 1419. V. Jamieson, 1401 . V. Keedey, 1439. 11. Lazier, 165, 198, 808, 814, 817, 880, 895. V. Mechanics' Sav. B'k, 736. V. Mitchell, 987. v. Senier, 1131, 1135. 11. Smith, 344. V. Stubbs, 100. 11. Swabey, 987, 988. ». Williman, 1309. Winchell v. Carey, 69. Winchester ii. Haokley, 1431. Windham B'k ». Dales, 307. «. Norton, 598, 1048, 1067, 1068. Windham Co. B'k v. Kendall, 366. Wing v. Terry, 95. Winn V. City of Macon, 1533. V. Thomas, 194. Whinship v. B'k of U. S., 368. Winslow 11. Norton, 1730. Winstead B'k v. Webb, 1366, 1374. Winston v. Westfeldt, 800. ». Yeargin, 1311. Winter ». Anson, 1281. V. Drury, 20. Wintermute ■». Post, 513, 545. Wintersmith «. Post, 508. Winthrop v. Pepoon, 930. Wintle v. Crowther, 351, 364. Winton v. Saidler, 1217. Wisdom n. Becker, 362. Wise ». Charlton, 5 1 . v. Prowse, 1 203. V. Rogers, 448, 1726. Wiseman D. Chapella, 1118. Withall V. Masterman, 1321. Witte V. Williams, 753, 781a. Wittenberger «. Spalding, 581. Wittle V. Derby Fishing Co., 410. Wofford v. Board of Police, 1479. Wolf V. Koppel, 314. V. Jewett, 311. Wolfe 11. Myers, 1729. Wolfersberger ». Bucher, 1432. Wollenleber v. Ketterlinus, 1079, 1081. Wood V. Bod well, 1200. V. Brown, 1158. V. Biillens, 1347. V. Corl, 622, 919, 1031. Wood V. Dowry, 113. «H Gibbs, 898. V. Holbeck, 366. V. Jefferson Co. B'k, 1305, 1326. V. McMeans, 1084. 11. Merchants' Sav., &c. Co., 326. a. Mullen, 625. ». Mytton, 130. ». Pugh, 523, 524, 1358. 11. Steele, 1373, 1376. V. Watson, 979. V. Wood, 999. Woodbridge i>. Brigham, 656. 11. Spooner, 80, 180. Woodbury v. Moulton, 399. Woodcock v. Houldsworth, 1031, 1053. Woodford v. Dorwin, 63, 65, 66, 371. 11. Whiteley, 1483. WoodhuU v. Holmes, 815. Woodin 11. Foster, 656. ». Frayze, 1590. Woodman n. Boothy, 713. V. Chapman, 358. 11. Churchill, 736, 803. ». Eastman,1131, 1134, 1135. ». Thurston, 1090, 1093,1094. Woodruff ». Heniman, 304. V. Leonard, 713. V. Merchants' B'k, 617, 633, 1571. V. Munroe, 1351, 1352. 11. Plant, 1598. 11. Scruggs, 1565. . 11. Trapnall, 447, 1725. Woods «. Bailey, 1381. V. Lawrence Co., 1494, 1540. V. North, 63. V. Ridley, 128, 130. 11. Schroeder, 1653. v. Sherman, 1251. V. Viozca, 725. 11. Wilder, 217, 318, 1060. Woodson i\ Moody, 1788. Woodstock B'k v. Downer, 159. Woodthrope v. Lawes, 979, 983, 991, 993. ,^i Woodward ». Foster, 278, 719, 720. V. Gunn, 90. 11. Severance, 703. V. Sup. of Calhoun Co., 1524, 1535. r>. Walton, 1311. Woodworth v. B'k of America, 153, 1397, 1401. v. Huntoon, 803. Wookey v. Pole, 145, 663, 1504. Woolley V. Clark, 251. V. Clements, 637. 11. Constant, 148. V. Sergeant, 35. Ixxxviii The references} TABLE OF CASES. [are to tlie sections. Woolsey v. Crawforcl, 1449. Wooster v. Jenkins, 187. Wooten v. Maullsby, 728. "Worcester Co. B'li «. Dorchester, &t. B'k, 775, 837, 1680. Worcester Co. B'k v. Wells, 896. Ins., &c. V. Davis, 1788. Nat. B'k V. Cheney, 829, 830. Worden ». Bemis, 1732. V. Dodge, 50. 1). Nourse, 992, 993. Work «. Tatman, 1574. Works 4). Hershey, 44. Worley v. Waldram, 657. Wormley i>. Lowry, 832. Worrall v. Gheen, 1408. Worsham v. Goar, 1326. Worth V. Case, 45, 180. Wren v. Pearce, 1764. Wright v. Boyd, 1188. V. Brosseau, 368. V. Douglas, 1669. V. Dyer, 1786. V. Hancock, 1472. «. Hart, 56. e. Irwin, 51. ID. Laing, 1252. V. Maidstone, 1482. V. Morse, 715. V. Keed, 1672. V. Shawcross, 1043. V. Steele, 281. «. Wright, 25, 743, 1472, 1481. Wrightsen d. PuUan, 370, 371. ■ Wyant ». Pattorf, 62. Wyat «. Campbell, 808. Wyate v. Evans, 196. Wyatt V. Bulmer, 198. Wyer v. Dorchester. &c. B'k, 775, 1680. Wyke D. Rogers, 1322. Wylie v. Brice, 509. Wyllie V. Pollen, 802. Wyman v. Adams, 612. V. Yeomans, 1377. Wynn v. Alden, 979. Wynne v. Callander, 206. V. Jackson, 914. v. Raikes, 491, 503, 552, 563. V. Whesonant, 204. Tale 11. Dederer, 248. 11. Wood, 11. Yarnell v. Anderson, 1260. Yates V. Bell, 19. v. Donaldson, 1335. D. Hall, 221. V. Shepardson, 1646. Yeageri). Parwell, 1108, 1147, 1158. Yeates ii. Groves, 33. Yeatman ii. Cullen, 895, 899. Yeaton «. B'k of Alexandria, 189. V. Bemey, 643. V. Durgin, 1022. Yocum 11. Smith, 844, 1406. York V. Pierson, 1328. Young «. Adams, 55, 737, 1675. «. Bennett, 954. v. Bryant, 936, 968. v. Cole, 733, 1533. V. Grote, 540, 1313, 1405, 1659. ». Harris, 879. ■0. Ward, 1184. Youngling v. Kohlkass, 1472. Youngs 11. Lee, 181, 184, 837, 832, 979, 983. Youse v. McCreary, 749. Yowell V. Dodd, 406. Zimmerman ii. Anderson, 61. V. Rote, 1405, 1407. ZoUoman v. San Francisco, 318. Zwinger v. Saniuda, 1713. NEGOTIABLE INSTRUMENTS. NEGOTIABLE INSTRUMENTS. BOOK I. THE MAKING OF THE INSTRUMENT. CHAPTER I. NATURE, HISTOEY AND USES OP NEGOTIABLE INSTRUMENTS. SECTION I. NATUEE, OEIGIN AND HISTOEY OF BILLS AND NOTES. § 1. An instrument is called negotiable when the legal title to the instrument itself, and to the whole amount of money expressed upon its face, may be transferred from one to another by indorsement and delivery by the holder, or by delivery only. The peculiarities which attach to negotiable paper are the growth of time, and were acceded for the ben- efit of trade. It was a rule of the common law of England, that a chose in action — by which is meant a claim which the holder would be driven to his action at law to recover — could not be assigned to a stranger, our forefathers conceiving that if claims and debts could be assigned, "pretended titles might be granted to great men, whereby right might be trodden down and the weak oppressed, which the common law for- biddeth."^ The first relaxation of this rule was made in respect to bills of exchange, and was gradually extended to notes and other securities, until the rule itself disappeared. ' Coke, Litt. 214a ; Chitty ou Bills [*7], 9 ; Edwards on Bills, 55. Vol. I.— 1 2 KA.TURB AND USES OF NEGOTIABLE INSTKUMENTS. But while all choses in action are now transferable, the negotiable instrument is the only species which carries by transfer a clear title and a full measure; and like an instru- ment under seal imports a consideration. It has, therefore, three peculiar and distinguishing characteristics : First. Eespecting the title. If a horse, or other personal chattel, or a non-negotiable instrument, be stolen, no pur- chaser, however innocent or ignorant of the theft, can acquire title against the true owner, who may at any place, and at any time, identify his property and reclaim it. But if a ne- gotiable instrument be stolen, and transferred by the thief to a third person in the usual course of business, before ma- turity, and for a valuable consideration, the person so acquir. ing it may hold it against the world. Second. Respecting the amount. If a bond or non-nego- tiable note be assigned, the assignee steps into the shoes of the assignor, and if the bond or note has been paid, or is sub- ject to any counter-claim or set-off against the original maker, they attach to and incumber it into whosesoever hands it may faU. But a negotiable paper carries the right to the whole amount it secures on its face, and is subject to none of the defenses which might have been made between the original or intervening parties, against any one who acquired it in the usual course of business before maturity. It is a circulating credit like the currency of the country, and, before maturity, the genuineness and solvency of the parties are alone to be considered in determining its value. It has been fitly termed " a courier without luggage." ^ Third. Respecting the consideration. By the common law, an instrument under seal imports a consideration, by virtue of the solemn ceremony of its execution ; and no other non-necjotiable instrument does. A bill of exchange, how- ever, by the usages of merchants, also prima facie imports a consideration ; and now by statute promissory notes of a cer- tain kind are placed on the same footing. As between im- ' Overton v. Tyler, 3 Barr, 346, Gibson, C. J. NATCBE, ORIGIN AND HISTOKY OF BILLS AND NOTES. 3 mediate parties, the true state of the case may be shown, and the presumption of consideration rebutted. But when a bill of exchange or negotiable note has passed to a bona fide holder for value, and before maturity, no want or failure of consideration can be shown. Its defects perish with its transfer ; while, if the instrument be not a bill of exchange or negotiable note, they adhere to it in whosesoever hands it may go. § 2. Bills of exchange were probably the first instruments for the" payment of money that were accorded a negotiable quality, though promissory notes, being simpler in form, were doubtless used as evidences of debt before bills of exchange came in vogue amongst merchants. Certainly these two securities were recognized as negotiable instruments before any other paper representatives of money or property passed currently from hand to hand in like manner as money ; and from them, as fruitful parents, have sprung all the varieties of negotiable instruments now known. Of bills and notes, therefore, we shall first speak, and after they have been suffi- ciently treated of, the other varieties of negotiable instru- ments will receive due attention. § 3. As to the origin and history of bills and notes. — The numerous commentators on the law of bills of exchange and promissory notes have generally enriched their pages with the results of their classic and antiquarian researches into the origin and history of those instruments. But notwithstand- ing the number and the diligence of the laborers in this in- teresting field of inquiry, it cannot be now stated, with any degree of certainty, by whom they were invented, or when they were first used. In respect to bills of exchange, it is said by Pothier, that there is no vestige of them among the Romans, or of any contract of exchange ; for though it ap- pears that Cicero directed one of his friends at Rome, who had money to receive at Athens, to cause it to be paid to his son at that place, and that friend accordingly wrote to one of his debtors at Athens, and ordered him to pay a sum of 4 NATUKE AND USES OP NEGOTIABLE INSTRUMENTS. money to Cicero's son, yet, it is observed, that this mode amounted to nothing more than a mere order or mandate^ and was not that species of negotiation which is conducted through the medium of a bill of exchange.^ Chancellor Kent seems to think that a passage in one of the pleadings of Isocrates indicates the use of bills of ex- change amongst the Greeks,- but Story considers that the transaction referred to was little more than the very case alluded to by Cicero, and put in the Roman law.^ Sir William Blackstone, remarking upon this subject, says : " This method is said to have been brought into general use by the Jews and Lombards when banished for their usury and other vices, in order the more easily to draw their effects out of France and England into those countries in which they had chosen to reside. But the invention of it was a little earlier ; for the Jews were banished out of Guienne in 1287, and out of England in 1290; and in 1236 the use of paper credit was introduced into the Mogul Empire in China." * And Chitty says : " Other authors have attributed the invention to the Florentines when, being driven out of their country by the faction of the Gebelings, they estab- lished themselves at Lyons and other towns. On the whole, however, there is no certainty on the subject, though it seems clear foreign bills were in use in the fourteenth century, as appears from a Venetian law of that period ; and an infer- ence drawn from the statute 5 Eich. II, st. 1, c. 2, warrants the conclusion that foreign bills were introduced into this country previously to the year 1381."® Macpherson, in his " Annals of Commerce," speaks of letters of credit being em- ployed by King John to procure advancements to his agents in Rome as early as 1202." And there is reason to believe that bills of exchange were known in England as early as ' Pothier de Change, n. 6 ; Story on Bills, § 6 ; 1 Bell Com. b. 3, c. 2, § 4, p. 386. " 3 Kent Com. Lect. 44. ' Story on Bills, § 6, note 4. ' 3 Black. Com. 467. ' Cbitty on Bills [*11], 16. ' P. 181, quoted in 1 Parsons N. & B. 4. NATUBB, ORIGIN AND HISTORY OP BILLS AND NOTES. 5 1307, since in that year King Edward I ordered certain money, collected in England for the Pope, not to be remitted to Mm in coin or bullion, but by way of exchange (^per viam Oambit)} § 4. The term " bill of exchange," derived from the FrencL. phrase " lillet de change^'' is suggestive of the use which it subserves — that of perfecting a previous distinct contract of ■exchange or bargain between A. and B. at one place, that A. would cause money to be paid to B. or his assign at another place, by C, a debtor to A., or supplied by him with value to the amount.^ Thus, if A. and B. are in England, and C. in Jamaica be indebted to A. one thousand pounds, and B. be going to Jamaica, B. may pay A. this thousand pounds -and take a bill of exchange drawn by A. in England upon C in Jamaica, and collect the amount from C. when he comes thither ; and thereby A. receives his debt, at any distance of place, by transferring it to B., and B. receives back his money at the end of his journey — and the parties are mutually benefited by avoiding the dangers of loss or robbery which would attend the actual transmission of funds to and fro.' From this primitive use, bills of exchange became, in the expansion of commerce, the evidences of valuable property, and in a great measure the equivalent of money, enlarg- ing the capital stock of wealth in circulation, and thereby facilitating and increasing the operations of trade between communities and nations.* § 5, Promissory notes have as obscure an origin as bills -of exchange. There is no doubt that they were in use among the Komans," but they seem never to have acquired those negotiable qualities which now impart to them their chief value as instruments of commerce. They were in use upon the continent of Europe before their introduction into En- gland, where they first came in vogue about the middle of ' Anderson's History of Commerce, Vol. I, 361. ' Chitty on Bills, 1. "2 Black. Com. 467. " Gibson v. Minet, 1 H.. Bl. 618. ' Story on Notes, § 5. 6 NATURE AND USES OP NEGOTIABLE INSTRUMENTS. the 17th century/ although it has iDeeii thought that they possess a more recent origin.^ In the earlier reports the terms "bill" and "note" appear to have been used indis- criminately, and it is difBcult to determine in many cases whether the particular suit was brought upon the one instru- ment or the other.^ It has been a much debated question whether or not the common law of England recognized the negotiability of promissory notes ; and most vigorously was the negative advocated by Lord Holt, who declared that the eftbrt to place them on the same footing as bills of exchange, "proceeded from the obstinacy and opinion ativen ess of the merchants, who were endeavoring to set the law of Lombard street above the law of Westminster Hall."* This contro- versy was terminated by the passage of the statute 3 & 4 Anne, c. 9 [1705] (made perpetual by the statute 7 Anne, c. 25), which made promissory notes " assignable or indorsable over in the same manner as inland bills of exchange are, or may be, according to the custom of merchants." ^ This statute has been adopted in some of the States of the United States, or in its lieu other statutes prescribing ' story on Notes, § 6. " BuUer v. Crips, 6 Mod. 29. " Grant v. Vaugban, 3 Burr. 15?5. ' Gierke v. Martin, 1 Lord Raymond. 757. ' Tlie statute of Anne (3 & 4 Anne, c. 9) provides: "That all notes in writ- ing that shall be made and signed by any person, &c., whereby such person, &c., shall promise to pay to any other person, his, her, or their order, or unto bearer, any sum of money mentioned in such note, shall be taken and construed to be, hy virtue thereof, due and payable to any such person, &c., to whom the same is made payable; and also every such note payable to any person, &c., his, her, or their order, shall be assignable or indorsable over, in the same manner as inland bills of exchange are or may be, according to the custom of merchants; and that the persons, &c., to whom such sum of money is or shall be by such note made payable, shall and may maintain an action for the same, iu such manner as he, she, or they, might do upon any inland bill of exchange, made or drawn accord- ing to the custom of merchants, against the person, &c., who signed the same;, and that any person, &c., to whom such note that is made payable to any person, &c., his, her, or their order, is indorsed or assigned, or the money therein men- tioned ordered to be paid by indorsement thereon, shall and may maintain his, her, or their action, for such sum of money, either against the person, &c., who signed the note, or against any of the persons that indorsed the same, in like manner as in cases of inland bills of exchange." FOREIGN AND INLAND BILLS. 7 the criteria and conditions of negotiability. It is not, there- fore, at this time a question of much practical consequence whether at common law promissory notes were negotiable or not ; though occasionally the point is presented in States where the statute law on the subject fixes other criteria of negotiability than those established by the statute of Anne. By some authorities it is contended that the statute of Anne was only declaratory of their then existing status,^ while by others the result of Lord Holt's reasoning is concurred in.^ Professor Parsons concludes that " these notes were at the time the statute was made, negotiable by the law merchant of England, which was and is as much a part of the law of England as — to use the strong language of Christian — the laws relating to marriage or murder."* SECTION II. FOREIGN AUD INLAND BILLS. § 6. Bills of exchange are either foreign or inland, — foreign when drawn in one state or country, and made pay- able in another state or country; inland when drawn, and made payable, in the same state or country. Inland bills are of later origin than foreign bills, not having been in use in England at a much earlier period than the reign of Charles II.* The advantages derived from employing foreign bills for remittance of money induced merchants universally to adopt them, and originally deriving their sanction from the custom of merchants, they were subsequently recognized and approved by the judicial tribunals, and the engagements of the various parties to them enforced.^ Inland bills, like ' Irvin V. Maury, 1 Mo. 194; Dunn v. Adams, 1 Ala 537; Edwards on Bills, 51, 53; 1 Parsons N. & B. 10-13. ^ Caton V. Lenox, 5 Rand. 31 ; Davis v. Miller, 14 Grat. 18; Norton t. Eose, 2 Wash. (Va.) 333. " 1 Parsons N. & B. 13. * Cbitty on Bills [*11], 16. ' Chitty on Bills [*11], 16; Martin v. Boure, Cro. Jac. 6 (1603); Oaste r. Taylor, Cro. Jac. 306 (1613); Hussey v. Jacob, Lord Raymond, 87 (1696); Chitty, Jr. 157, 158, 189. 8 HATUKE AND USES OF NEGOTIABLE INSTRUMENTS. them, were at first more restricted in their operation than at present, for it was deemed essential to their validity, that a special custom for the drawing and accepting them should exist between the towns in which the drawer and acceptor lived ; or if they lived in the same town, that such a custom should exist therein.- At first, also, effect was only given to the custom when the parties were merchants, though after- wards extended, as in the case of foreign bills, to all persons whether traders or not.^ § 7. The chief difference between foreign and inland bills is this : that the former must be protested in order to charge the drawer, while the latter need not be.^ But there are other differences important to be observed. Every contract, as to its validity, nature, interpretation and effect, is governed by the laws of the place where it is made, unless it is to be performed in another place, in which case it is governed by its laws; and as the drawer, acceptor, and each indorser is a several and distinct contracting party, his liabilities are to be ascertained by the law of the place where his engagement is to be performed. This subject, and also the interesting ques- tions which arise when a bill or note is signed or dated in one place and delivered in another, will be discussed else- where.* § 8. In England, whence comes the distinction between foreign and inland bills, a bill drawn in Ireland and payable in England is deemed a foreign bill.^ And where a bill was drawn in London upon a merchant in Brussels, payable to the drawer's order in Loadon, it was held an inland bill, BoUand, B., saying : " An inland bill is a bill drawn in and payable in Great Britain, which this bill is." * ' Buller V. Crips, 6 Mod. 29 (1704); Pinkney v. Hall, Lord Raymond, 175; Chitty on Bills [*11, 13], 16; Chitty, Jr. 233. " Bromwich v. Lloyd, 3 Lutw. 585; Sarsfield v. Witherly, Carth. 83; Chitty on riRls [*11, 12], 16. " See Vol. II, chapter xviii, on Protest. * See chapter sxvii, on the Conflict of Laws, § 868 et seq. " Maboney v. Ashlin, 2 B. & Ad. 478. ' Amner v. Clark, 2 Cromp. M. & R. 468. FOREIGN AND INLAND BILLS. 9 § 9. States foreign as to each other. — ^There is no doubt that the several States of the United States are foreign as to each other ; for though in the aggregate they form a confed- erated government, yet the several States retain (theoreti- cally) their individual sovereignties, and, with respect to their municipal regulations, are foreign to each other.^ Thus, if a drawer and drawee reside in Kentucky, and the bill be payable in New Orleans, Louisiana, it is a foreign bill;^ though if it be drawn in Kentucky on a New Orleans mer- chant, and be payable in Kentucky, it would be inland.^ § 10. In the Federal courts of the United States, the de- cisions are sometimes in conformity with those of the State courts of last resort in respect to the liabilities of parties to bills and notes, but not uniformly. The 34th section of the judiciary act of 1789 provides that "the laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply." But this section has been held to be limited in its application to the laws of the several States of a strictly local character, that is to say, to the p)Ositive statutes of the States, and their interpretation by the local tribunals, and the rights and titles to things having a permanent locality, such as real estate, and not to extend to questions of general commercial law. There- fore, where any controversy arises as to the liability of a party to a bill of exchange, promissory note, or other negotiable paper, in one of the Federal courts of the United States, which is not determined by the positive words of a State ^ ' Warder v. Arell, 2 Wash. (Va.) 298 ; Brown v. Ferguson, 4 Leigh, 37 ; Buck- ner v. Finley, 2 Peters, 586; Lonsdale t. Brown, 4 Wash. C. 0. 86, 153; Cheno- ■with V. Chamberlin, 6 B. Monroe, 60 ; Duncan v. Course, 3 Const. B. (So. Car.) 100; State Bank v. Hayes, 3 Ind. 400 ; Warren v. Coombs, 20 Me. 139; Ticonic Bank v. Stackpole, 41 Me. 303; Phoenix Bank v. Hussey, 13 Pick. 483; Carter t. Union Bank, 7 Humph. 548; Carter v. Burley, 9 N. H. 558; Wells v. Whitehead, 15 Wend. 537 ; Todd v. Neal'a Adm. 49 Ala. 266 ; Donegan v. Wood, 49 Ala. 343 ; contra, Miller v. Hackley, 5 Johns. 375, Vanness, J. ' Buckner v. Finley, 2 Peters, 586. ' Amner v. Clark, 2 Cromp. M. & R. 468. ]0 NATUEB AND USES OF NEGOTIABLE TNSTKUMENTS. statute, or by its meaning as constraed by the State courts, the Federal courts will apply to its solution the general principles of the law merchant, regardless of any local de- cision.^ § 11. Whether or not a bill is foreign or inland, and by what laws the liabilities of parties to bills and notes are to be governed, may often be not sufficiently disclosed by the date of place on the instrument itself, as the courts of the several States, as of different countries, upon settled princi- ples, do not take judicial notice of the divisions of foreign States into counties, towns and cities. Thus, in England, the averment that a bill was drawn in Dublin was not considered equivalent to averring that it was an Irish bill. Abbott^ C. J., said : " The framer of the declaration has not said that Dublin is in Ireland, and we cannot assume it, whatever may be our belief on the subject; " and Bailey, J., said : " There may be a Dublin in America or Scotland." ^ So the Supreme Court of Texas have held that they could not judicially know that a note payable in New Orleans was payable in Louisi- ana,' or a bill dated there was drawn in Louisiana ; * or that a note dated " Philadelphia" was made in Pennsylvania.® So- ' Swift V. Tyson, 16 Peters, 1, Stoiy, J., saying: "We liave not now the Blighlest difficulty in holding that this section, upon its true intendments and construction, is strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a com- mercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to and will receive the most deliberate attention and respect of this court; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respecting negotiable instruments may be truly declared, in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 3 Burr. R. 882, 887, to be in a great measure, not the law of a single country only, but of the commercial world : " Non erit dia lex Romai, alia Athenis, alia nunc, alia posthac, sed et apud omnes gentes, ei omni tempore, una eademque lex ohtinehit.^^ Mercer County v. Hacket, 1 Wall. 96 ; Township of Pine Grove v. Talcott, 19 Wall. 667. See on this subject article in American Law Review for April, 1875, and Gelpcke v. Du- buque, 1 Wall. 173. " Kearney v. King, 18 E. C. L. R. 28. " Andrews v. Hoxie, 5 Texas, 171. * Yale V. Wood, 30 Texas, 17. ' Cook v. Crawford, 4 Texas, 437. FOREIGN AND INLAND BILLS. 11 in Missouri, as to New Orleans, tte court would not take ju- dicial notice that a bill dated there was foreign.^ § 12. It may be difficult sometimes to determine whether a bill is inland or foreign. Thus, suppose a Boston merchant, temporarily in the city of New York, were to draw his bill on a New York merchant, payable in New York, but were to date it in Boston, would it be an inland or a foreign bill ? In relation to innocent third parties, who have taken the bill in the belief that it was what its face imported, it would un- doubtedly be held foreign." " As between the original par- ties and others having notice of the circumstances under which the bill was drawn, the question would be more doubt- ful ; bxat we think it would, even then, be held to be a foreign bill, especially if it appeared that it was drawn in that form for no wrongful purpose, but only that the bill might con- form to the drawer's usual course of business, and be what it would have been had he not happened to be at the time in New York. The converse of this has been decided." ^ Such is the language of Professor Parsons on this question, which we adopt as a succinct and judicious view of the law .* § 13. If a bill be upon its face an inland bill, the fact that it was actually drawn and delivered in a foreign State will not divest it of its inland character. Thus, where a bill was drawn in Wisconsin, but dated East Fork, in Illinois, it was held in the latter State that it must be treated and con- sidered as an inland bill. " Such was the intention and agreement of the parties, as shown on the face of the instru- ment. That it was competent for the parties, both being citizens of Elinois, to provide for their express agreement that it should be subject to and construed by the laws of this State, is too well established by authority to admit of doubt." ' ' Riggin V. Collier, 6 Mo. 568. ' See chapter xxvn on the Cnnflict of Laws and Snaith v. Mingay, 1 Maule- & S. 87; Lennig v. Ralston, 23 Penn. St. 137. ' Strawbridge v. Robinson, 5 Gilman, 470. ■■ 1 Parsons N. & B. 57. ' Strawbridge v. Robinson, 5 Gilman, 473, Oaton, J. 12 NATURE AND USES OF NEGOTIABLE INSTRUMENTS. § 14. The presumption is that a bill purporting to be ■drawn abroad was really so drawn. But evidence would be admissible to show that a bill purporting to have been drawn abroad was, in fact, drawn within the country where suit is brought, and is therefore void for want of a stamp required by the internal revenue laws of such country.^ But it has been recently held, in Massachusetts, that the mater or in- dorser of a note cannot, as against the indorser in that State for value, before maturity and without notice, show that the note which was dated in Boston, with intent that it should be a Massachusetts contract, was actually made in New York, and, on account of illegal interest, was void under the usury laws of the latter State.* SECTION III. THE. EFFECT OF A BILL OF EXCHANGE. WHETHEE OR NOT IT IB AN ASSIGNMENT. § 15. As we have already seen heretofore, it was the policy of the common law to interdict the assignment of pos- sibilities, rights, titles and things in action, on the ground, as stated by Lord Coke, that " it would be the occasion of mul- tiplying of contentions and suits, of great oppression of the people, and chiefly of terre-tenants, and the subversion of the due and equal execution of justice." ^ Bills of exchange and promissory notes have long been recognized exceptions to this rule ; and, by courts of equity, it has long been discred- ited, and assignments of a mere naked possibility or chose in action for valuable consideration have been held valid and effectuated by them.* And courts of law, following in the footsteps of equity, now recognize and enforce such assign- ' Abraham v. Dubois, 4 Camp. 269; Eire v, Moreau, 3 C. & P. 376 (12 E. C. L. R.) ; Jordaine v. Lashbiooke, 7 T. R. 601 ; Steadman v. Duhamel, 1 C. B. «88. See post, § 869 et seq. ' Towne v. Rice, 132 Mass. 67. ■ Coke's R. Part X, 48a. 3 Lead. Cases in Equity [*652] 307 ; Chitty on Bills [*7, 8], 9, 10. THE EFFECT OF A BILL OF EXCHANGE. 13 nients in suits brought in the name of the assignor for the benefit of the assignee, it being necessary for the assignee to assert his rights at law in that form, as the want of privity of contract between himself and the debtor is considered to stand in the way of a suit in his ov^n narae,^ except where expressly allowed by statute. § 16. The drawing and transferring of bills of exchange depend upon principles of the law merchant, which apply peculiarly to negotiable instruments. But the effect of the drawing of a bill of exchange, upon the rights and interests of the parties in the fund which is in the hands of the drawee, depends very frequently upon principles derived from the doctrines of courts of equity in respect to equitable assign- ments. And we shall now consider the effect of a bill or order upon the fund on wMch it is drawn. This inquiry naturally divides itself into several branches : First. What is the effect of a bill of exchange (a negotiable bill in its com- mercial sense) drawn for the whole amount of a fund in the drawee's hands 1 Second. Wbat is the effect of a non-nego- tiable order for the whole of a fund 1 Third. What is the effect of a bill of exchange for part of a fund ? And fourth. What is the effect of a non-negotiable order for part of a fund? § 1 7. In the first place, as to the effect of a negotiable hill for the whole of a fund in the drawee's hands. — The author- ities on this' question present great contrariety of opinion. By some, it is declared to operate as an equitable assignment of the fund. By others, that the drawing of the bill is an independent transaction, totally disassociated in its legal effect from the funds in tbe drawee's hands, and does not operate as an assignment of them, but simply as an engage- ment of the drawer that the drawee shall pay the payee a certain amount. And great confusion has arisen in the adju- dicated cases from a failure to discriminate between the par- ' Wheatley v. Strobe, 12 Cal. 98; Mandeville v. Welch, 5 Wheat. 227; Chitty on Bills [*9], 10. 14 UATUEE AKD USES OP NEGOTIABLE INSTRUMENTS. ties who may claim that, as to them, it operates as an assign- ment, and those who can make no such claim. In an early English case it is said : " The theory of a bill of exchange is that the bill is an assignment to the payee of a debt due from the acceptor to the drawer ; " ^ and it is un- doubtedly true that the payee has a right to suppose that the drawee has funds of the drawer, upon the faith of which un- derstanding he receives the bill directing them to be paid to him. As between the drawer and payee, then, we think it is clear that the bill is intended to operate, and does operate, as an assignment of the fund in the drawee's hands sufficient to meet it ; ^ and if there be no such funds, and no understand- ing that the bill will be honored, the drawer commits a fraud upon the payee, and will be absolutely bound upon the bill, without notice of dishonor. And if, after drawing the bill, the drawer should withdraw the funds in the drawee's hands, it would be likewise a fraud upon the payee, and the drawer would be absolutely bound without notice.^ § 18. As between the payee and the drawee, however, there is no privity of contract, unless the drawee accepts to pay the bill. When he does this, he becomes absolutely bound to pay the debt to the holder of the bill. And any subse- quent bill drawn upon him, or transfer or assignment of the fund in his hands, or legal process served upon him by a creditor of the drawer, could create no liability upon him to pay or deliver over the funds of the diawer to any one but ' Gibson v. Minet, 1 H. Bl. 569 ; Story on Bills, § 18; Chitty [*1], 3. = Story on Bills, §§ 13, 18; Chitty on Bills [*1], 2. '' In Gibson v. Cooke, 20 Pick. 15, Dewey, J., said: "It seems to be equally well settled that a draft by the creditor on his debtor in tlie form of a bill of ex- change to the amount of the debt, or the wbole funds in his hands, is a good and valid assignment of the debt or fund." In Robins v. Bacon, 3 Grcenleaf, 349, Mellen, C. J., said : A case which seems directly in point is that of Mandeville v. Welch, 5 Wheat. 277. In that case it was decided, as stated by Story, J., in delivering the opinion of the court, that, ''where an order is drawn for a particular fund, it amounts to an equitable assignment of the fund ; and, after notice to. the drawee, it binds the fund in his hands." In these cases the bills were not negotiable ; but no distinction in re- spect to them was taken. THE EFFECT OF A BILL OF EXOHAKGE. 15 the holder, to whom he has entered into an obligation to pay them.^ § 19. When, however, the drawee has not accepted, or assented to pay the amount to the holder, the rights of the parties are more difficult to determine. The holder cannot sue the drawee at law in his own name, for there is no con- tract on the part of the drawee to pay him.^ But we should say that he might sue the drawee in the name of the creditor for the amount of the debt, and offer the bill in evidence to show that it had been assigned to him ; ^ and although the ' Lambert v. Jones, 3 Patton & Heath, 144; Mandeville v. Welch, 5 Wheat. 377. In Buckner v. Sayre, 17 B. Monroe, 754, it appeared that the Lexington Insurance Co. drew a bill on the 5th of August, 1 851, on its agent, J. H. Wheeler, at New Orleans, payable at six months, for $7,183. In November following the company made a general assignment to Buckner, as trustee, to pay its debts; And afterwards, Wheeler, who had accepted the bill, paid over $3,000, which he had collected from premiums, to Buckner, the trustee. Simpson, J., said: " Sayre, as the holder of the bill of exchange, was entitled to the fund in the hands of the acceptor, which the latter, by his acceptance, had appropriated for his use and benefit." Harris v. Clark, 3 Comstock, 117, Ruggles, J. ; 3 Parsons N. & B. 330, 831 ; Story on Bills, § 13. ' Tiernan v. Jackson, 5 Peters, 580 ; Harris v. Clark, 3 Comst. 117, Kuggles, J. : "" It is clearly settled that no action at law will lie in favor of the holder of a bill ■of exchange against the drawee, unless he accepts the bill." See post, § 50, and note. New York & Va. State Bank v. Gilson, 5 Duer, 574, Duer, J. : " There is no such privity between him (the drawee) and the holder as can entitle the latter to maintain an action against him." Yates v. Bell, 3 B. & Aid. 643; Williams V. Everett, 14 East, 583. Holder has no action against drawee to whom funds are remitted for money had and received. ' Corser v. Craisr, 1 Wash. C. C. 436. In this case suit was brouglit by the payee and indorser, for the benefit of his indorsee, against the drawee. Action was sustained. This is going farther than any other adjudicated case we know of. Had action been brought in the name of the drawer for the last indorsee's benefit, it would have been unobjectionable, as we think, and the following lan- guage of Washington, J., would have been applicable. He said: If the drawee refuse to accept, and pay the bill, the right of the holder to the debt once assigned to him is not thereby impaired; although he may not be entitled to recover the same in his own name, for the want of a promise to pay. But he may sue the drawer, or the drawee in the name of the drawer, for the debt orig- inally due, in consequence of the implied contract of the assignor of a chose in action, that the debtor shall pay, and, on failure, that the assignor will. The bill being retained after protest, by the assignee, is evidence that the amount has not been paid by the drawer or any of the indorsers. I see no possible mischief which can result from this doctrine. For, if after payment refused, and protest 16 NATUKF, AND USES OF NBGOTIABLB INSTRUMENTS. drawee would be protected if lie parted with the funds be- fore notice of the bill, yet if it were joayable on demand, and after its presentment for payment, he should pay the amount to another, under a subsequent order, he would be still bound to pay it over to the holder of the first bill. And after pre- sentment to the drawee, a subsequent assignment in trust for creditors, or attachment or garnishment process served upon the drawee, would not defeat the equitable claim of the holder to have the funds appropriated to pay the bill.^ § 20. This doctrine is controverted by some of the au- thorities.^ And even when the bill has been accepted, it has been declared not to operate as an assignment of the funds made, the drawee should pay over the funds iu his hands to the drawer, or to his order, without notice from the first assignee, that he should retain the bill, and look to him for the amount, so far as he was bound to pay ; this would be a good defense against a suit brought in the name of the drawer." ' Wheatley v. Strobe, 12 Cal. 97. Held that after the presentment of the bill funds could not be reached by attachment at suit of drawer's creditors. Field, J. : " The want of a written acceptance does not affect the right of Howell (the holder) to the money due, but only the mode of enforcing it. With the accept- ance he could have sustained the action upon the order ; without it he mnst re- cover upon the original demand by force of the assignment. Under the old com- mon law practice, the action could only be sustained in the name of the assignor for the benefit of the assignee, but under our system it may be brought in the name of the assignee as the party beneficially interested. Courts of law, equally with courts of equity, gave effect to assignments like the one under considera- tion, by controlling the proceeds of the judgments recovered for the benefit of the assignee." Roberts v. Austin, 36 Iowa, 315 ; see Vol. H, chapter XLvir, on Checks, § 1635 et seq. ' See Bank of Commerce v. Bogy, 44 Mo. 15. In this case the bill was drawn for the whole debt due the drawer by the drawee. The payee sued the drawee, and it was held that the bill did not operate per se as an assignment, though connected with circumstances it might be evidence of an assignment. The plead- ings did not aver an assignment, and were defective in that respect. Harrison V. Williamson, 3 Edw. Ch. 438. In Shand v. De Buisson, Law. R. 18 Equity Cases, 283 (1874), where the bill was for the exact amount of the funds m the drawee's hands, Sir James Bacon, V. C, said : " It is entirely new to me to hear that a bill of exchange in an ordinary mercantile transaction in the shape in which this appears, can amount to an equitable assignment of the debt. The note might have been indorsed to any individual, or to any number of people, who might have indorsed it in succession. A mercantile instrument it is in its original, and in that shape it remains ; and has no other validity or efi'ect, and to call it an assignment of a debt, would be to call it not by its right name." EFFECT OF A BILL OF EXCHANGE. 17 or property in the drawee's hands.^ But in both cases, we think that the doctrine of the text is enjoined^by principles of good faith and fair dealing. The payee of a bill unac- cepted, it is true, has no written obligation but that of the drawer to look to. But in its very nature it imports that the drawee holds the drawer's funds, which he will appro- priate to its payment. It is in anticipation and upon the faith of those funds that the payee is, or may be, induced to take it. And it seems just and right that courts of equity? and courts of law, in so far as their rules of procedure will permit, should carry out and enforce the expectation and in- tention of the parties. It is not sufficient to answer that the drawer's contract is absolute and independent of the fact whether or not he has funds or property in the drawee's hands. It is true, that he is personally bound, whether such be the case or not ; but because he is personally bound is no ' Marine and Fire Insurance Bank v. Jauncey, 3 Sandf. 258. John Wood, hav- ing one hundred and five bales of cotton, which he intended to consign to Joseph Wood, drew a bill on him in favor of Walsh at sixty days' sight, for $3,000, which was discounted by plaintiffs, and the proceeds applied by John Wood to pay for the cotton above mentioned, which he had bought. The bill was dated June 29th, 1846, and accepted by the drawee on July 6th, 1846. The cotton was shipped to the drawee. On the 30th of June Joseph Wood became insolvent, and executed an assignment of all his estate, including a debt due him by John Wood, the drawer, of $3,200. The cotton was also placed in Jauncey's hands, and its net proceeds were $3,700, which the plaintiffs sought to reach by their bill in equity, The court said in respect to the bill of exchange, that though accepted, it was not an equitable assignment ; and that the drawee, on receiving the funds derived from the cotton, " had a right to apply them to the payment of his general balance, or in any other way that John Wood and he might agree upon." The case was, as we think, rightly decided ; but we do not see that the broad doctrine declared was necessary to such decision. There was a superior equity in the drawee, which had priority over the equitable assignment. It does not follow that there was not an equitable assignment (subject to superior equita- ble rights), or rather an equitable right to follow the proceeds of the cotton. Cowperthwaite v. Sheffield, 1 Sandf. 416 ; Winter t. Drury, 3 Sandf. 263, note ; Cowperthwaite v. Sheffield, 3 Comst. 243. Hurlbut, J.: "A proper bill of exchange does not of itself operate as an assignment to the jjayee of funds of the drawer in the hands of the drawee, and even after an unconditional accept- ance, it cannot in strictness be held to have that effect, since the drawee becomes bound by reason of the contract of acceptance, irrespective of the funds in his hands." See post, § 50, and note. Vol. I.— 3 18 NATURE AND USES OF NEGOTIABLE INSTEUMENTS. reason why the fund upon which the bill obtained additional credit, expressly or impliedly, should not be bound also, as an equitable security for the debt.^ § 21. In the second place, as to an order for the ivhole of a fund. — It may be regarded as a settled doctrine, that an order founded upon a good consideration, given for a specific debt or fund owing by or in the hands of a third person, operates as, or rather is evidence of, an equitable assignment of the demand to the holder.'' It is clearly an assignment, as between the drawer and the payee, because so intended.* It is equally so as between them and the drawee, as soon as it is presented to him and he assents ; * and whether he assents or not, the holder may in equity recover the debt or fund from him.*^ And if the. debtor be served with garnishment ©r other process of law after the order has been given, and before he has been compelled to pay the amount to another, the order will take precedence.^ An order for a specific ' If the circumstances show an intention to assign the fund, the assignment should be enforced. " The intention to assign operates as an equitable assign- ment." Kahnweiler v. Anderson, 78 N. C. 137. ^Mandeville v. Welch, 5 Wheat. 277; Robins v. Bacon, 3 Greenleaf, 346 ; Cowperthwaite v. Sheffield, 3 Corast, 3i3; McMenomy v. Ferrers, 3 Johns. 72; Bank of Commerce v. Bogy, 44 Mo. 18; Anderson v. De Soer, 6 Gratt. 364; Cutts v. Perkins, 13 Mass. 309; Morton v. Naylor, 1 Hill, 583; Gibson V. Cooke, 20 Pick. 15; Parker v. City of Syracuse, 31 N. Y. 379; Harris v. Clark, 3 Comstock, 117. = Morton v. Naylor, 1 Hill (N. Y.) 583. A landlord gave an order directing his tenant to pay W. the rents accruing during a specified period, which, on its presentment, he said he would do. The landlord sub.equently directed the ten- ant not to pay, but the latter disregarded the notice, and paid *he order. It was held that the tenant did right, the order operating as an equitable assignment. Cowen, J., said: " I refer to cases in chancery to show that an order for value is per se an equitable assignment to the payee of the debt due from tbe drawee to the drawer. Our own rules at law as to enforcing such an assignment are well known. We give it the same efl'ect as would a court of chancery." " Legro V. Staples, 16 Maine, 253; Johnson v. Thayer, 17 Maine, 403; De- sesse V. Napier, 1 McCord, 106 ; Peyton v. Hallet, 1 Caines, 363. See Story's Eq. Juris. § 1043. " Story's Eq. Juris. § 1044 ; Kahnweiler v. Anderson, 78 N. C. 13C. " Anderson v. De Soer, 6 Gratt. 364. In this case it appeared that a draft for $10,000, drav.n by Grivegnee, a legatee, dated Malaga, 30th July, 1819, upon THE EFFECT OF A BILL OF EXCHANGE. 19 fund usually contains words indicating an intention to pass or appropriate the whole fund, as, " Pay to A. B., $ , the amount of your collection from C. D.," or the amount re- ceived from such a transaction ; ^ which words, unless paren- thetically inserted as a mere earmark, characterize the instru- ment as an unnegotiaWe order, and deprive it of its qualities as a commercial instrument. § 22. ik the tliird place and fourth plax)e, as to a hill of exchange or an order for part of a fund. — The doctrine is laid down with emphasis by many authorities that an order, or a bill drawn for part of, a fund, does not operate as an as- signment of that part, or give a lien as against the drawee, unless he consent to the aiDpropriation by an acceptance of the draft.^ And Mr. Justice Story, delivering the opinion of the United States Supreme Court, has said : " The reason of this the executors of his uncle, at Richmond, Va., who had left him a legacy of $10,000, directing that when forthcoming, and out of the funds destined for that object by his deceased uncle, they should pay that amount to the order of Messrs. Scholtz & Brothers, for value received of them, noting the same as amount of legacy left him by his uncle, was held to be an assignment of the legacy, and as such to have precedence over an attachment thereupon served four days after the drawing of the draft, and before it was presented. ' Bank of Commerce v. Bogy, 44 Mo. 18. - Harris v. Clark, 3 N. Y. (3 Comstook), 115, 116. Buggies, J., in speaking of Justice Story's opinion in Mandeville v. Welch, 5 Wheat. 286, to the effect that a bill of exchange is " in theory an assignment to the payee of a debt due from the drawer to the drawee," says : " This is undoubtedly true wlnen the hill hasheen accepted, whether it be drawn on general funds, or a specific fund, and whether the bill be in its own nature negotiable or not ; for in such case the acceptor, by his assent, binds and appropriates the funds for the use of the payee. But where an order is drawn on a general, or on a particular fund for a part only, it does not amount to an assignment of that part, or give a lien on the drawee unless he consent to an appropriation by an acceptance of the draft." See Weinstock v. Bellwood, 13 Bush (Ky.) 139; Mandeville v. Welch, 5 Wheat. 277; Kobins v. Bacon, 3 Greenleaf, 346 ; Gibson v. Finley, 4 Maryland Ch. 75 ; Hopkins v. Bee- bee, 3 Casey, 85; Gibson v. Cooke, 20 Pick. 15; Poydras v. Delamere, 13 La. 98 (O. 8. 1838), action against drawee; Cowperthwaite v. Sheffield, 1 Sandf. 416, Vanderpoel, J.: " Where an order is drawn for part of the fund only, it does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to an appropriation by an acceptance of the draft " And if the drawee pays a part of the order, it does not operate as an assignment as to the residue. Noe v. Christie, 51 N. Y. 373. 20 NATURE AND USES OF NEGOTIABLE INSTRUMENTS. principle is plain. A creditor shall not be permitted to split up a single cause of action into many actions, without the consent of his debtor, since it may subject him to many em- barrassments and responsibilities not contemplated in his original contract. He has a right to .stand upon the single- ness of his original contract, and to decline any legal or equitable assignments by which it may be broken into frag- ments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that be shall be obliged to pay in fragments to any other persons. So that, if the plaintiff could show a partial assignment to the extent of the bills, it would not avail him in support of the present suit." ^ § 23. This doctrine is clearly correct in so far as it applies to legal assignments. The bolder of the bill or order cannot sue the drawee at law in his own name, as he would thus divide the cause of action, and leave a balance due the cred- itor.^ He cannot sue in the creditor's name, except by his consent, as, at best, he is only entitled to a part of the debt due him. But it bas been held in numerous cases that a non- negotiable order for part of a fund operates as an equitable assignment pro tcmto? Clearly this is the case wben it has ' Mandeville v. Welch, 5 Wheat, 386. ' Weinstock v. Bellwood, 12 Bush (Ky.) 139. =■ Yeates v. Groves, 1 Vesey, Jr. 381. Dawson being indebted to Teates and Brown, upon a note, gave him an order on Groves and Dicliinsoii for the amount of the note, which they surrendered, payable out of an amount due for leasehold property. Before the money was paid. Da ;vson was thrown into bankruptcy, and Yeates and Brown claimed the fund fro tanto, and filed their bill to reach it. Lord Thurlow said : " This is nothing but a direction by a man to pay part of his money to another for a foregone valuable consideration. If he could transfer, he has done it ; and it being bia own money, he could transfer. The transfer was actually made. They were in the right not to accept, as it was not a bill of exchange. It is not an inchoate business. The order fixed the money the mo- ment it was shown to Groves and Dickinson." See Bradley v. Root, 5 Paige Ch. 641, where above case is quoted. Lett v. Morris, 4 Simons, 607. In this case, A. having engaged to pay to B. £3,300 by installments, B, signed and gave to C, for value, an order authorizing A. to pay parts of each installment to C^, and £460 was to be reserved in A.'s hands out of the balance, and C.'s receipt was to be a discharge to A. A. was served with notice of the order on the day it was signed; but there was no act or expression of consent. Vice- Chancellor Shad- THE EFFECT OF A BILL OF EXCHANGE. 21 been accepted or assented to by the drawee.^ And when it Las not beeij accepted, our own view is this : that a non-ne- gotiable order for part of a fund does operate as an equitable assignment pro tanto as between the drawer and payee, be- cause obviously so intended. But as between drawer and payee on the one side, and the drawee on the other, it creates no obligation on the latter to pay it, as he has a right to in- sist on an integral discharge of his debt. And if the creditor give a subsequent order for the whole amount, he may pay it with impunity, as he thus discharges his whole debt in its entirety at once.* But if the payee goes into equity, or the parties are brought therein by any proceeding, so that all of them are before the court, the holder of the order may en- force it as an equitable assignment as against all subsequent claimants, whether by assignment from the drawer, or by legal process served upon the drawee.^ Mr. Justice Story has stated the principle, as we conceive it, more correctly in his treatise on Equity Jurisprudence than in the cases hitherto cited ; and he there declares that, while a draft for part of a fund operates no assignment at law, the same principle applies in equity to a draft for part of a fund that applies to a draft for the whole, and that " in each case a trust would be created in favor of the equitable assignee of the fund, and would constitute an equitable lien upon it." * It is necessary, in order to support the assign- ment, that it should be upon a valuable consideration.'' "well said : " I entertain no doubt that the order amounts to an equitable assign- ment." Row V. Dawson, 1 Vesey, 331; Ex parte South, 3 Swanston, 391. Order for £417 6s. " as part of the amount due to me for plumber's work, &c." Held, subsequent bankruptcy of drawer did not defeat it, it having been shown to the .debtor. Pope v. Huth, 14 Cal. 407. ' Desesse v. Napier, 1 McCord, 107; Vreeland v. Blunt, 6 Barb. 183; Peyton V. Hallet, 1 Caines, 363 ; Pope v. Huth, 14 Cal. 407 ; Cutts v. Perkins, 13 Mass. 306; Israel v. Douglas, 1 H. Bl. 339; Clark v. Adair, cited by Buller, J., in Mas- ters V. Miller, 4 T. R. 343 ; Tatlook v. Harris, 3 T. R. 180, may sue acceptor for money had and received ; Ex parte Alderson, 1 Madd. 53. " 3 Leading Cases in Equity (3 Am. ed.) 356; Poydras v. Delamere, 13 La. 98 (O. S. 1838). ' 3 Leading Oases in Equity, 356; Field y. Mayor of New York, 3 Seld. 179 (1853). ' Story's Eq. Juris. § 1044. ' Alger v. Scott, 54 N. Y. 14. 22 NATURE AND USES OF NEGOTIABLE INSTRUMENTS. SECTIOlSr IV. DONATIO MOETIS CAUSA. § 24. A gift made in contemplation of death is termed donatio mortis causa, an expression derived, with the law on the subject, from the civil law. As to the character of the article which may be the subject of such a quasi-testamentary disposition, the common law has undergone considerable change. Originally, it was limited to chattels which might be delivered by the hand ; and the rule was relaxed slowly and somewhat reluctantly by the courts, under the apprehen- sion that fraud upon persons in dying condition might be encouraged by its extension. Bank notes were next em- braced, with lottery tickets, and securities transferable by delivery, such as notes payable to bearer ^ or to order, and indorsed in blank, while notes not so payable were excluded.* Subsequently, it was extended to bonds ; ^ and the later cases hold that a note not negotiable, or if negotiable not indorsed but delivered, passes by such a donation, with a right to use the name of the personal representative of the promisee, to collect it for the donee's own use, the equitable title passing to him.* In farther extension of the principle, it has been held that, even if the donor indorse a bill or note of a third ' Miller v. Miller, 3 P. Wms. 356, in which case it was held that bank notes passed, but a note payable to the donor's order did not. Chitty on Bills (13 Am. ed.) 3. = See Chase v. Redding, 13 Gray, 420. = Snellgrave v. Bailey, 3 Atk. 214; Ward v. Turner, 2Vesey, Sr. 431; Duffield T. Elwes, 1 Bligh, 409, in which case a bond with mortgage deeds delivered to the donee was held to create a trust in his favor. * Chase v. Redding, 13 Gray, 418, in which case it was held that a gift mortis causa of promissory notes, secured by mortgages, with assignments of the mort- gages, was valid. Grover v. Grover, 24 Pick. 264 ; Sessions v. Moseley, 4 Cush. 87; Turpin v. Thompson, 2 Met. (Ky.) 420; Jones v. Deyer, 16 Ala. 221 ; Borne- man V. Sidlinger, 15 Me. 439; Brown v. Brown, 18 Conn. 410; McConnell v. Mc- Connell, 11 Vt. 390; Parker v. Marston, 27 Me. 196 ; Tillinghast v. Wheaton, 8 R. I. 536 ; Veal v. Veal, 29 L. J. Ch. 331 ; s. c. 37 Beav. 303 ; Rankin v. Weguelin, 27 Beav. 309; Stevens v. Stevens, 9 N. Y. S. C. (2 Hun), 473; Byles on Bills {Sharswood's ed.) 295-6; Thomson on Bills, 30, 21; Redfield on Wills, 312, 813; DONATIO MORTIS CAUSA. 23 person as donatio mortis causa, the donation will be valid, although the estate of the indorser will not be bound upon his indorsement, as it is without consideration. And this seems to us at once a just extension and limitation of the principle.^ This doctrine obtains in Scotland, where it has been decided in several cases ; ^ and it has been carried even farther in England, where it has been held that bills deliv ered on death bed, but without consideration, were valid gifts, and authorized the donees, in the first place, to force the donor's executors to indorse the bills, and, in the next place, to recover from the acceptors, the indorsation being regarded as a mere technicality.^ The doctrine has been held in the United States to extend to a bank book contain- ing entries of deposit ; and it has been held that the delivery of such a book by a person in extremis, with intention to give it as donatio mortis causa, constituted a valid gift of the money deposited in the bank.* In Louisiana, where, on the day before he died, plaintiff's testator delivered to defendant the check of another, payable to and indorsed by him in contra, Bradley v. Hunt, 5 Gill & Johns. 54, in which case it is limited to bank notes and notes payable to bearer. ' Weston V. Eight, 17 Me. 287. ' Thomson on Bills, 20. In one case, where a person had indorsed a bill for 1,000 marks to his grandson, then under age, and put it thus indorsed, but with- out particular instructions, into the hands of his son and general disponee (dis- tributee), the court, in an action for delivery brought by the grandson, decerned (decreed) in his favor. In a later case, where the holder of two promissory notes indorsed them on his death bed, and delivered them to a person, telling him to deliver one to a servant, as a reward for services, and the other to certain parties, as a mark for gratitude for past favors, the court sustained the right of the donees to sue the makers. ' Veal V. Veal, 29 L. J. Ch. 321 ; 27 Beav. 303 ; Rankin v. Weguelin, 27 Beav. 309. " Hill V. Stevenson, 63 Me. 364 ; Camp's Appeal, 36 Conn. 88 ; 4 Am. Rep. 39 ; Tillinghast v. Wheaton, 8 R. I. 536, Durfee, J., saying : " It is true we find no case which is the exact parallel of the case before us, but the principle declared in the cases to which we have referred is broad enough to include the case before us ; and therefore whatever, as a matter of wise policy, we may think of the ex- pediency of holding a savings book to be the subject of a gift mortis causa, we do not see how, as a matter of law, we can hold otherwise." But see contra, Mc- Connell v. Murray, 3 Ir. L. J. 668. 24 NATURE AND USES OF NEGOTIABLE INSTEUMENTS. "blank, and it was not presented until after tbe donor's death, it was held a valid gift causa mortis} Delivery in all such cases may be to the donee, or to some- other person for the donee.^ Where a party deposits a sum in bank in his own name as trustee for another, and recog- nizes it as his, the deposit is considered as a complete gift, irrevocable by the depositor ; and if he withdraws it, his per- sonal representative will be liable for the amount.' § 25. But the gift of the donor's own note as donatio mortis causa would not be valid, as his representatives might prove that it was Avithout consideration ; * and so the draft of the donor on a third person who holds his funds is not an assignment thereof until accepted, and is not a valid mortuary gift.^ The theory of the law is to throw the salutary checks which are found in the formal execution of wills around those who are associated with the donor in his dying condi- tion ; and to hold these dispositions valid would, in effect, dispense with the guards against fraud and imposition which ' Burke v. Bishop, 27 La. An. 465 (1875) ; 37 Am. R. 567. = Hill V. Stevenson, 63 Me. 364 ; Dole v. Lincoln, 31 Me. 423 ; Wells v. Tucker, 3 Bin. 366. = Minor V. Rogers, 40 Conn. 512 (18T3); Millspaugh v. Putnam, 16 Abbott's Pr. R. 380. See also Champney v. Blanchard, 39 N. Y. Ill ; Grover t. Grover, 24 Pick. 361. ■■ Parish v. Stone, 14 Peck, 198; Holley t. Adams, 16 Vt. 206. In Hamer v. Moore. 6 Ohio St. 339, the note ran: "For value received I promise to pay to Mrs. Hamer, wife of John Hamer, the sum of $300, as a small recompense for the kindness shown to me by her. The executors of my last will and testament are hereby directed to pay the above to Mrs. H. or her sons, Moses and John, after my decease." Signed and attested. It was held invalid as a gift causa mortis. lu Helfenstein's Estate, 77 Penn. St. 328, H. made his note for tbe sum of $4,000, payable one year after date, to Treasurer of Theological Seminary, and dehvered it to the chairman of the seminary library committee; subjoined to it was a statement that it was a donation, the interest of which was to be applied to the purchase of books for the seminary. Shortly afterward the maker died. Held that the note, being without consideration, and not having been accepted by the trustees before the maker's death, was revoked thereby, and a subsequent acceptance of it was ineffective. ' Harris v. Clark, .3 Comst. 93; Craig v. Craig, 3 Barb. Ch. R. 76, overruling Wright V. Wright, 1 Cowen, 598; Billing v. Devaux, 3 Man. & Gr. 565; see Bay- ley on Bills, 348, intimating the contrary. DONATrO MORTIS CAUSA. 25 are found in the rules which govern the authentication and probate of last testaments. "The very circumstance," as has been said, "vfhich sometimes renders a will suspicious is the living principle in a donatio mortis causaP ^ But it would seem that the payee even of an undelivered bill could recover, in England, if it were attested in terms of the wills act.^ § 26. The same reasons which prevent a note or bill of the donor from being the subject of a donatio mortis causa, apply with equal force to a check.® If a check be given as an immediate gift, and is collected in the lifetime of the donor, the donee may retain the proceeds ; but death operates as a revocation, if it be not collected, or has not passed into the hands of a bona fide holder.'* A check to the drawer's wife, on which he had written that it was to enable her to buy mourning, and as a temporary provision, was held, under the peculiar circumstances, a valid donatio mortis causa;^ but the delivery of a note by one brother going into military service, to another, with directions to give it to his mother should he not return, is not so considered.^ It is plain that a donatio mortis causa cannot prevail against the creditors of the donor when his assets are other- wise insufficient.'^ Nor can it prevail against the donor's estate unless delivered.^ ' Holley V. Adams, 16 Vt. 206. = Gough v. Findon, 7 Exch. 48. = Tate V. Hilbert, 3 Vesey, Jr. Ill ; Burke v. Bishop, 27 La. An. 465 (1875). ' Bouts V. Ellis, 17 Beav. 131 ; 4 De G. M. & G. 349; Hewit v. Kaye, L. R. 6 Eq. 198 ; Burke v. Bishop, 27 La. An. 465 ; 21 American R. 567. ° Lawson v. Lawson, 1 P. Wms. 441. ' Irish V. Nutting, 47 Barb. 370 ; Sheldon v. Button, 13 N. Y. S. C. (5 Hun), 110. ' Chase v. Redding, 13 Gray, 418. " Ward V. Turner, 2 Yes. Sr. 431. See on this subject Southern Law Review for April, 1875, p. 145. CHAPTER II. DEFINITION AND ESSENTIAL KEQUISITES OF BILLS AND NOTES. § 27. A bill of exchange is an open letter addressed by- one person to a second, directing him, in effect, to pay abso- lutely and at all events, a certain sum of money therein named, to a third person or to any other to whom that third person may order it to be paid ; or it may be payable to bearer or to the drawer himself.^ ' The definitions of bills and notes are given as follows by various writers: Blaokstone defines a bill of exchange to be " an open letter of request from one man to another, desiring him to pay a sum of money therein named to a third person on his account." 3 Black. Com. 466. Bayley says : A bill of exchange is a written order or request, and a promis- sory note a written promise, for the payment of money absolutely and at all events." Bayley on Bills, 1. Chitty follows Blackstone, and Chancellor Kent follows Bayley. Chitty on. Bills, ] ; 3 Kent's Com. 74. Byles says: "A bill of exchange is an unconditional written order from A. to B., directing B. to pay C. a sum of money therein named." Byles (Shars- wood'a ed.) 1. And that "A promissory note, or as it is frequently called, a note of hand, is an absolute promise in writing, signed but not sealed, to pay a specified sum at a time therein limited, or on demand, or at sight, to a person therein named or designated, or to his order, or to the bearer." Byles (Shars- Tvood's ed.) [*5.] In Story on Bills, the definition of a bill given by Bayley is commended as concise, clear, and accurate. The learned author adds, however: "But here again its peculiar distinguishing quality in modern times, its negotiability, is omitted, which, although not by our law essential to the instrument ; is stiU that which, practically speaking, among merchants, constitutes its true character. Mr. Kyd has accordingly given the more extended definition, stating it to be " an open letter of request, addressed by one person to a second, desiring him to pay a sum of money to a third, or to any other, to whom that third pei-son shall order it to be paid ; or it may be payable to bearer." See Kyd on Bills, p. 3, and Story on Bills, § 8. In Story on Promissory Notes, it is said : " A promissory note may be defined to be a written engagement by one person to pay another person, therein named, absolutely and unconditionally, a certain sum of money at a time specified there- in." Story on Notes, § 1. Without adopting the precise language of any author, we have given herein definitions which seem to ns more accurate than some others, and which, at least, cannot be misleading. DEFrNITION AND REQUISITES OF BILLS AND NOTES. 27 Abram, who draws the bill, is called the drawer ; Ben- jamin, to whom it is directed, is called the drawee, and, upon accepting it, becomes the acceptor. Charles, to whom the bill is made payable, is called the payee. If the bill be payable to " Charles only,^'' it is not nego- tiable ; but if payable to " Charles or order," he may, by indorsing it, direct that it be paid to David, and in that case Charles becomes the indorser, and David the indorsee. § 28. A promissory note or note of hand, as it is often called, is an open promise in writing by one person to pay another person therein named, or to his order, or to bearer, a specified sum of money absolutely and at all events. Abram, who makes the note, is called the maker ; Benjamin, to whom the promise is made to pay, the payee ; and if the note is transferred from Benjamin to Charles by indorsement, they are termed respectively indorser and indorsee. If the transfer from Benjamin to Charles be by delivery merely, they are termed respectively assignor and assignee. The maker of a note is sometimes termed the drawer^ and in accommodation indorsements the indorser frequently writes over his name : " Credit drawer." When the term " drawer " is so used, the maker is of course meant, though not accurately described. " Holder " is a general word applied to any one in actual or constructive possession of the bill or note, and entitled at law to recover or receive its contents from the parties to it. § 29. In their original structure, a bill of exchange and promissory note do not strongly resemble each other. In a bill there are three original parties : drawer, drawee, and payee ; in a note only two : maker and payee. In a bill the acceptor is the primary debtor. In a note the maker is the only debtor. But if the note be transferred to a third party by the payee, it becomes strikingly similar to a bill. The indorser becomes then, as it were, the drawer, the maker the acceptor, and the indorsee the payee. The reader, bearing 28 DBI'INITION AND REQUISITES OF BILLS AND NOTES. this similitude ia mind, will easily be able to apply to notes tte decisions hereinafter cited concerning bills, and vice versa. § 30. In order to fulfill the definition given, the paper must carry its full history upon its face, and embrace the following requisites : First. It must be open, that is, un- sealed. Second. The engagement to pay must be certain. Third. The fact of payment must be certain. Fourth. The amount to be paid must be certain. Fifth. The medium of payment must be money. Sixth. The contract must be only for the payment of money ; and Seventh. It is also essential to the operation of the instrument that it should be delivered. SECTION I. THE PAPER MUST BE OPEN, THAT IS, tTNSEALED. § 31. The first requisite of a bill is, that it shall be an ■" open letter " of direction — and of a note that it shall be an open promise =— for the payment of money. By the term " open " is meant " unsealed " ; and though the instrument possess all the other requisites of a bill or note, its character as a commercial instrument is destroyed, and it becomes a covenant, governed by the rules affecting common law secu- rities, if it be sealed.^ Thus in Delaware, where a draft in the form of a bill was drawn by a corporation which attached its corporate seal, it was held not to be a bill of exchange, and to be incapable of indorsement as such by the law merchant.^ It has been held, however, that the afiixing of a ' Edwards on Bills, 208, 210 ; Chitty on Bills (13 Am. ed.) [*166], 190; Story on Bills, § 62; Story on Notes, § 55. ' Conine v. Junction & B, R. Co. 3 Houston, 289, Gilpin, C. J., saying: " Deeds or sealed instruments are not only of a mucli higher antiquity than bills of exchange, but they are of a totally different origin. They cannot be said to be made secundum usum mercatorum, since they find their recognition and validity in the more ancient rules of the common law. On the other hand, bills of ex- change find their origin and sanction in the usage and custom of merchants, the THE PAPER MUST BE UNSEALED. 20 seal to a bill is a mere superfluity, and does not interfere witli its validity or transferability ; ^ but the doctrine of the text is supported by tbe highest authority. § 32. Seals to notes. In respect to promissory notes, the same rules prevail. If a seal be afiixed to a paper in the or- dinary form of a note, its character as such is destroyed ; and it is thereby converted into 'the deed or bond of the maker, who is then termed the obligor, and the instrument is not subject to the peculiar doctrines that are applicable to mercantile securities.^ And this rule applies to corporations as well as to individuals.^ It appears, indeed, that, anterior to the statute of 3 & 4 Anne, already quoted,* bonds were occasionally transferred by indorsement in like manner as bills and notes, but the practice did not ripen into a settled custom, and by the above mentioned statute they were not included with notes in being declared negotiable.^ It is to lex mercatoria, a particular or peculiar system, whicli, being in the interest of commerce, became at length gradually engrafted into, and established as a part of the common law itself ******* " All contracts under seal are specialties, sealing and delivery being the particular form and ceremony which alter the nature and operation of the agree- ment. Forms, consecrated by time and usage, become substance. The seal is substance and changes the nature and operation of the contract. It seems to me,, therefore, that the question -which I have been considering is settled upon princi- ple against the 'plaintiffs. But however this may be, it has been held as settled upon authority for more than thirty years past." ' Irwin V. Brown, 3 Cranch C. 0. 314. ^ Clegg T. Lemesurier, 15 Grat. 108; Mann v. Sutton, 4 Band, 253; Hopkins V. Railroad Co. 3 Watts & S. 410; Clark v. Farmers' Manuf. Co. 15 Wend. 356; Parks V. Duke, 3 McCord, 380 ; Lewis v. Wilson, 5 Blackf . 369 ; Helper v. Alden, 3 Minn. 333; Warren v. Lynch, 5 Johns. 339. = Clark V. Farmers' Manuf. Co. 15 Wend. 256. See Central Nat. Bank v. Charlotteville, &c. B. R. Co. 5 S. C. 156, where respecting a note with the sial of the corporation, which made it impressed upon it, and which was held negotia- ble, it was said : " The seal of a corporation is not in itself conclusive of an intent to make a specialty. It is equally appropriate as the means of evidencing the assent of a corporation to be bound by a simple contract as by a specialty." Indorsement by corporation through its seal, held not to affect its negotiability in Rand v. Dovey, 83 Penn. St. 280. See^os^, § 664. * See ante, § 5, note. ' Buller V. Crips, 6 Mod. 29 (1704). Holt, C. J., declared that he had de- sired to speak with two of the most famous merchants in London, and that they 30 DEFINITION AND KEQUISITES OF BILLS AND NOTES. be observed, however, that merely by attaching a seal to the signature does not make it a sealed instrument, unless there be a recognition of the seal in the body of the instrument by some such phrase as " witness my signature and seal," or " signed and sealed," for otherwise the door would be thrown open to frauds and forgeries, by the facility with which seals could be superadded.^ Such is the view taken in Virginia ; but it is conceded that 'the rule was otherwise at common law,^ and there are decisions adhering to the common-law rule.^ § 33. In some of the States of the United States, sealed instruments for the payment of money are placed by statute upon the same footing as bills and notes in respect to their negotiability; and the addition of a seal to a bill or note pay- able to order or bearer in no way impairs its negotiability.* In others, bonds are made transferable, and may be sued upon in the name of the assignee, but the latter takes them subject to all defenses that were available to the original obligee.^ § 34. A scroll affixed as a seal is generally of the same force as a seal,^ and parol evidence, where such is the case, is had told him that not only notes, but bonds for money, were transferred fre- quently, and indorsed as bills of exchange. ' Peasley v. Boat-wright, 2 Leigh, 196. In Anderson v. Bullock, 4 Munf. 443, the following was held to be a promissory note, and the scroll annexed as a seal to be mere surplusage : $a,861 81. Richmond, October 10, 1801. On or before the first day of February next, we hind ourselves, our heirs, executors, or administrators, to pay Thomas and Amos Ladd, or order, two thousand three hundred and sixty-one dollars and eighty-one cents. AUSTIN & ANDERSON, [l. s.] Cromwell v. Tate's Exs. 7 Leigh, 305; Baird v. Blagrove, 1 Wash. 170; Argenbright v. Campbell, 3 H. & M. 174 ; Austin v. Whitlock, 1 Munf. 487 ; Jenkins v. Hart, 3 Rand. 446; Clegg r. Lemesurier, 15 Graft. 108. '' Cromwell v. Tate's Exs. 7 Leigh, 305. = Trasher v. Everhart, 3 Gill & J. 246. •' Colorado, Dakota, Florida, Georgia, Illinois, Kansas, Massachusetts, Ne- braska, North Carolina, Ohio, Tennessee. " As in Virginia. ' Giles V. Maulden, 7 Richardson, 11; Peasley v. Boatwright, supra; contra, BlBckwell T. Hamilton, 47 Ala. 470. CEETAnJTY AS TO ENGAGEMENT TO PAT. 31 admissible to show that a scroll affixed was intended as a seal.^ An instrument binding the signers to pay a certain sum of money, and signed by some with, and by others without, seals, is the bond of the former, and the promissory note of the latter, and one action of debt may be brought against all the parties.^ SECTION II. CKETAINTT AS TO ENGAGEMENT TO PAY. § 35. In the second place^ the engagement to pay must he certain. — Therefore the bill must contain a certain direction, and the note a certain promise to pay. A bill is in its na- ture the demand of a right, not the mere asking of a favor, and therefore a supplication made, or authority given to pay an amount, is not a bill. The language, " Mr. Little, please to let the bearer have £7, and place it to my account, and you will much oblige your humble servant," was held not a bill ; ^ but on the other hand, where the language was : " Mr. Nelson will much oblige Mr. Webb by paying I. Ruff, or order, on his account, twenty guineas," was held to import an order, and therefore a good bill.* The usual expression used in bills is, " please pay," and it has been well said by Justice Story that the language should not be too nicely scanned, nor be regarded because of its politeness as asking a favor rather than demanding a right.^ " Please let the bearer have $50 ; I will arrange it with you this forenoon," and signed, "your's, most obedient," was held sufficient in Kentucky.'^ An instrument directing a certain person to deliver a particu- lar sum to A. B., or to be accountable or resj)onsible to him for a particular sum would be a good biiy and so would a ' Pollock Y. Glassell, 3 Qrat. 439. ' Rankin v. Roler, 8 Grat. 53. ' Little V. Stackford, 1 Mood. & Malk. 371. " Ruflf v. Webb, 1 Esp. R. 129. '• Story on Bills, § 83; Cliitty, p. 150; Thomson, 6. ° Bresenthal v. Williams, 1 Duval, 329. ' Morris V. Lee, 2 Lord Raymond, 1396. 32 DEFINITION AND REQUISITES OF BILLS AND NOTES. direction to credit him in casli for a particular sum/ or any expression from which such direction could be inferred. § 36. A promissory note must contain a certain promise to pay. It is said by Story, that, "it seems that to constitute a good promissory note, there must be an express promise upon the face of the instrument to pay the money; for a mere promise implied by law, founded upon an acknowledged indebtedness, will not be sufficient." ^ But we think the bet- ter language is used by Byles, who says : " No precise words of contract are necessaiy, provided they amount, in legal effect, to a promise to pay." ^ In other words, if over and above the mere acknowledgment of debt, there may be col- lected from the words used a promise to pay it, the instru- ment may be regarded as a promissory note. In England, it seems to be well settled that an ordinary due-bill, which is there frequently given in the following form : " London, 1st January, 1875. " Mr. A. B. : "I. 0. IT. £100. "C. D." does not amount to a promissory note, but is mere evidence of an account stated, requiring no stamp under the English stamp acts. This was the view taken by Lord Chief Justice Eyre in 1795, where the paper ran " I. O. U. eight guineas," * and though in 1800 Lord Eldon held a similar paper to be a promissory note, and ruled it out when offered in evidence, because it had no stamp,^ subsequent decisions have recurred to the doctrine of Chief Justice Eyre, and it is the established law of England.^ ' Ellison V. Collingride, 9 C. & B. 570 ; Allen v. Sea Fire, &c. Ins, Co. 9 C. B. 574. But see WooUey v. Sergeant, 3 Halsted, 202. " Story on Promissory Notes, § 14. ' Byles on Bills, 8. ' Fisher v. Leslie, 1 Esp. 425. "■ Guy v. Harris, Cliitty on Bills, 53(5. " Israel v. Israel, 1 Camp. 499, Lord Ellenborough. The paper ran, ''I owe my father 470?." Childers v. Boulnois, Dow. & Ry. 8; Payne v. Jenkins, 4 Car. & P. 335; Fesenmayer v. Adcock, 10 M. & W. 449; Tompkins v. Ashby, 6 B. & C. 541; 9 Dow. & Ry. 543. CEETAINTY AS TO THE ENGAGEMENT TO PAY. 33 In the United States the decisions are conflicting. In some of tliem a naked due-bill is held to be a promissory- note ; ^ as in Illinois, for instance, where the paper ran " Due G. S. W., five hundred and twenty-five dollars," ^ and in Mis- souri, where the words were, " Due B., one hundred and fifty dollars." * In others such a paper is held to be a mere ac- knowledgment of indebtedness.* § 87. The question seems to us simply one of intention. If a debtor give a mere due-bill to his creditor containing nothing but an acknowledgment of the debt, it is fair to pre- sume that he merely designed to furnish him with evidence of its existence. The law implies a promise to pay from the existence of the debt ; but that promise not being written on the note, it cannot be regarded as a promissory note. To be a " promissory note," the promise must not only be implied from the fact of indebtedness evinced by the note, but should be expressed in the note in so many words, or by necessary implication. § 38. There may be words superadded to the acknowl- edgment, however, from which an intention to accompany it with an engagement to pay may be gathered. Thus in New York the words " Due S;, or beai'er, $340, for value received, with interest," were held to constitute a note ; ^ so in the same State, the words, " Due A. B., or bearer, two hundred and 26-100, for value received ;" ' in Maine, the words, " Good to bearer," "^ and in Tennessee, " Due J. C. E.., or order," ^ were held sufficiently obligatory to constitute a promissory note. So in New Hampshire the language, " Good E. C, or order '■ Fleming v. Burge, 6 Ala. 373; Brewer v. Brewer, 6 6a. 588; Marrigan v. Page, 4 Humph. 247 ; Cummings v. Freeman, 3 Humph. 145 (overruling Read v. Wheeler, 3 Yerger, 50). " Jacquin v. Warren, 40 111. 459 ; 39 Id. 461. ' Brady v. Chandler, 31 Mo, 38. * Currier v. Lockwood, 40 Conn. 348 ; Road v. Wheeler, 2 Yerger, 50. ' Sackett v. Spencer, 29 Barb. 180; Lowe v. Murphy, 9 Ga. 338. ' Russell T. Whipple, 3 Cow. 536. ' Hussey t. Winslow, 59 Me. 170. ' Marrigan v. Page, 4 Humph. 347. Vol. I.— 3 34 DEFINITION AND KEQUISITES OF BILLS AND NOTES. for thirty dollars, borrowed money," ^ and in Maine, " Due A. B., or order, |20, on demand," ^ has been given the like effect ; and so in Arkansas, " Due I. H., or order, value re- ceived."^ In these, as in other cases, the insertion of negotia- ble words have been justly construed as manifesting an in- tention to make the instrument promissory and negotiable, and they have been effectuated accordingly. § 39. The insertion of " on demand," has been thought, in itself, sufficient to show that the debtor intended to do more than merely state the balance due on account. It recognizes an obligation, and necessarily implies a promise to pay when demanded. This view was taken in Connecticut, where the words used were, "Due John Allen, $94 91, on demand," Smith, J., saying : " Where a writing contains nothing more than a bare acknowledgment of a debt, it does not, in legal construction, import an express promise to pay ; but where a writing imports not only the acknowledgment of a debt, but an agreement to pay it, this amounts to an express contract." ^ And the like view has obtained in other cases. The mere addition of the words " value received," would not alone, it seems, import a promise in addition to the acknowledgment,^ though it has been held otherwise.^ But, " Due A. B., $325, payable on demand," '^ or " I acknowledge myself indebted to ' Franklin v. March, G N. H. 364; Huyck v. Meador, 24 Ark. 195; CummiDg3 V. Freeman, 3 Humph. 144. - Carver v. Hayes, 47 Me. 357. = Huyck v. Meador, 24 Ark. 193. ' Smith V. Allen, 2 Day, 837. ' Read v. Wheeler, 2 Yerger, 50; Currier v. Lockwood, 40 Conn. 348; Am. Law Reg. Jan'y, 187o. Judge Redfield, in a note to this case, dissents from its conclusions, as did also two of the judges (Foster and Phelps), who were mem- bers of the court which decided it. Judge Redfield says: " A promissory note is not required to be in any particular form, much less to embrace the word 'promise.' All that is required is that the written terms used, in their proper legal construction, shall import an admission by the maker that he holds himself bound to pay the payee a definite sum of money at a definite time; or, no time being named, then presently on demand." ° Finney v. Shirley, 7 Mo. 43; sse Huyck v. Meador, 24 Ark. 193. ' Kimball v. Huntington, 10 Wend. 675 ; Mitchell v. Rome R. R. Co 17 Ga. 574; Pepoon v. Stagg, 1 Nott & McCord. 102. CEKTAINTY AS TO THE FACT OF PAYMENT. 35 A. in 100^., to be paid on demand, for value received,"^ or "I. O. U. 85^., to be paid May 5t]i,"* would constitute prom- issory notes, significance being given to the words of pay- ment as indicating a promise. § 40. There are other memoranda of indebtedness which have been held, like bare due-bills, not to amount to notes. Thus, a memorandum, "Mr. T. has left in my hands $200," is not a note.^ And the following papers : "I have received the sum of , which I borrowed from you, and I have to be accountable for the said sum with interest,"* and "T. O. U. , which I borrowed of Mrs. Melanotte, and to pay her five per cent, till paid,"^ have been held not notes, because not importing promises to pay. So, in a written bargain for buying goods, a promise to pay the seller the price in a limited time is not a note, but a mere memorandum of the terms of the bargain." SECTION" III. CEETAINTT AS TO THE FACT OF PAYMENT. § 41. In the third place the fact of payment must he cer- tain. The instrument must be payable unconditionally, and at all events, in order to be negotiable. If the oider or promise be payable provided terms mentioned are complied with ; as, for instance, that a railroad be built to a certain point by a certain time, it is not a bill or note ; ^ and likewise if payable provided a certain act be not done ; ^ or another person shall not previously pay;® or provided a certain ship shall arrive ; *" or provided the maker shall be able.'^ Some- ' Casborne v. Button, 1 Selwyn's N. P. 320. = Waithman v. Elzee, 1 C. & K. 35. ' Tompkins v. Ashby, 6 B. & 0. 541 ; s. c. 1 M. & M. 33. * Home V. Redfearne, 4 Bing. IST. C. 433. " Melanotte v. Teasdale, 13 M. & W. 216. " Ellis v. Ellis, Gow, 216. ' Eldred v. Malloy, 2 Col. T. 320; Chitty on Bills,- 134. ' 8 Mod. 363. ' Roberts v. Peake, 1 Burr. 333. "■ Coolidge V. Ruggles, 15 Mass. R. 387; Palmer v. Pratt, 3 Bing. 185. " ExparU Tootle, 4 Vesey, 372; Salinas v. Wright, 11 Tex, 573. 36 DEFIKITTON AND REQUISITES OF BILLS AND NOTES. times a condition of time is expressed by the word " when," as "when A. shall marry ;"^ " when a certain suit is deter- mined;"^ "when a certain sale is made;"^ or "certain divi- dends declared ;" * " when a certain amount is collected ;" ^ or " when the estate of M. is settled up ;" ^ " after arrival and discharge of coal by brig A." '' So, if it be expressed to be payable subject to this policy."^ In all these cases the con- tingency implied deprives the instrument of its character as a bill or note, as the events named may never happen. If paya- ble in installments, no time for the payment of the installments being mentioned, it is not a promissory note.^ In Illinois, where the promise was to pay a railroad company or order, a certain sum, in such instalments, and at such times as the directors of the payee company might assess or require, it was held negotiable, and in effect payable on demand, or in installments on demand.^" § 42. In England, it has been held that an order for a certain sum " payable ninety days after sight or when real- ized," was not a bill, as the latter alternative made it pay- able upon a contingency," but this is not the view which prevails in such cases in the United States. § 43. AutJiOjHties in the United States. In the'United States, if the time must certainly come, although the particu- lar day is not mentioned in the note, it is regarded as nego- tiable, as the fact of payment is then certain. Thus, where the note ran, "I promise to pay A. B., or bearer, $75 one year from date, with interest annually, and if there is not ' Pearson v. Garrett, 4 Mod. 243; Beardsley v. Baldwin, Stra. 1157. '^ Shelton v. Bruce, 9 Yerger, 24. = De Forest v. Frary, 6 Cow. 151 ; Hill v. Halford, 2 B. & P. 413. ' Brooks V. Hargreavea, 91 Micli. 355, " Corbett v. State of Georgia, 34 Ga. 287. " Husband v. Epling, 81 111. 172 (1876). ' Grant v. Wood, 13 Gray, 230. ' American Exchange Bank v. Blanchard, 7 Allen, 333. But a mere note of the nuQiber of the policy for which the note was given, would not vitiate its negotiability. Union Ins. Co. v. Greenleaf, 64 Me. 133; see § 797. ' Moffatt y. Edwards, Car. & M. 16. '" White V. Smith, 77 HI. 851. " Alexander v. Thomas, 16 Q. B. 333. OBRTAINTT AS TO THE FACT OP PAYMENT. 37 enough realized by good management in one year, to have more time to pay, in the manufacture of the plaster bed on Steams' land," it was held negotiable, Pierpont, C. J., saying that the only uncertainty was as to the length of time to be given, and " this uncertainty the law makes certain by giving him a reasonable time thereafter (the time prescribed) to make the payment." ^ So, where the note ran " to be paid as soon as collected from my accounts at P.," it was held that the phrase was not intended to make the debt conditional, but only to prescribe that a reasonable time be allowed for collection of the accounts.^ So, where the note was to pay " by 20th of May, or when he completes the building accord- ing to contract," it was held that the 20th of May fixed the ultimate day when it should fall due.* So, where the prom- ise was to pay "against the 19th of December, or when the house John Mayfield has undertaken to build for me is com- pleted," the like decision was made.* So a note payable on or before a certain day ; ** for, as said in such a case by Cooley, J. : " The legal rights of the holder are clear and certain ; the note is due at a time fixed, and it is not due before. True, the maker may pay sooner if he shall choose, but this option if exercised would be a payment in advance of the legal liability to pay, and nothing more. Notes like this are common in commercial transactions, and we are not aware that their negotiability is ever questioned in business deal- ings. It ought not to be questioned for the sake of any dis- tinction that does not rest upon sound reason." ° § 44. Other cases have arisen illustrative of these views. A note payable on demand after date, " when convenient," has been held payable absolutely in a reasonable time.'' So a note payable in six months " or as soon as I can with due ' Capron v. Capron, 44 Vt. 413 (1873). " Ubsdell V. Cunningham, 33 Mo. 124 (1855). " Stevens v. Blount, 7 Mass. 240 (1810). * Goodloe v. Taylor, 3 Hawks, 458. ' Mattison v. Marks, 31 Micli 421 ; Jordan v. Tate, 19 Ohio, N. S. 586. • Mattison v. Marks, 31 Mich. 431 (1875) ; Helmer v. Krolick, 36 Mich. 373 (1877). ' Works v. Hershey, 35 Iowa, 340. 38 DKFINITION AND EEQUISITES OF BILLS AND NOTES. diligence make the money out of said patent right ;" ^ a note payable in nine months, " or as A.'s horse earns the money in the cavalry service;"^ a note payable twelve months after date, "or sooner if made out of a certain sale,"^ have been each held valid, negotiable notes, payable absolutely at the termination of the time expressed, and earlier, provided the alternative event ti-anspired. A note payable " from the avails of logs bought of M. M., when there is a sale made;"* or " when I sell my place where I now live," have been held in Maine payable absolutely after a reasonable time.* § 45. So, where the note was to pay " as soon as real- ized," to which was added " to be paid in the course of the season now coming," Shaw, C. J., said the undertaking to pay was absolute, and that "whatever time may be under- stood by the ' coming season,' whether harvest time or the coming year, it must come by mere lapse of time, and that must be the ultimate limit of the time of payment." * So, where the certificate is payable " on, the return of this certifi- cate," it is negotiable, because that merely requires, as in the case of any note, the return of the evidence of the debt ; but if there be added " and the return of my guaranty of a cer- tain note," it would engraft a collateral condition which would defeat the negotiability of the instrument.'^ The American decisions quoted seem to us salutary and correct. It has been held by the United States Supreme Court that a note payable " as soon as the crop can be sold, or the money raised from any other source," is not a promissory note." ' § 46. If payable when, or so many days after, '' A. shall come of age," ® the instrument would not be a bill or note, ' Palmer v. Hummer, 10 Kansas, 464; contra, Hubbard v. Mi>sely, 11 Gray, 170. ^ Gardner v. Barger, 4 Heiskell, 669. " Ernst V. Steckman, 74 Penn. St. 13. To same eflfect, Walker v. Woolen, 54 Ind. 104. * Sears v. Wright, 34 Me. 378. ' Crooker v. Holmes, 65 Me. 195. ° Cota'v. Buck, 7 Mete. 588 (1844). ' Smilie V. Stevens, 39 Vt. 316; Blood v. Northrup, 1 Kansas, 39. • Nunez v. Dautel, 19 Wall. 592. • Kelley v. Hemmingway, 13 111. 604. CERTAINTY AS TO THE FACT OF PAYMENT. 39 as A. might die a minor, and the fact that he actually attains majority does .not alter it; but if the time when A. will come of age is specified, it will be good, as it will be taken to be payable absolutely when the time arrives.^ If payable at or within a certain time after a man's death, it is sufficient, because the event must occur ; ^ and a promise to pay "on demand, after my decease, $850," signed by the promiser, is a good note, negotiable as any other, and binding on the promiser's estate at his death.'' So a note payable " one day after date or at my death," * and if the day of payment must come at the same time, it has been said that the distance is immaterial.^ The English courts have gone so far as to hold that if payable at a certain time after a government ship is paid off, it would be good, because government is sure to pay;* but this decision has been justly criticised and dis- trusted.^ An agreement to pay ninety days after the happening of two events, one of which may never happen, is not negotia- ble.^ A note payable " on or by " a certain day is payable on that day ; ^ and a note payable " by " a certain day may be declared on as payable on that day.'" § 47. A promise to pay a certain sum for stock " in whole or from time to time in part, as the same shall be required within thirty days after demanded, or upon notification of thirty days in any newspaper," would answer the conditions necessary to a negotiable promissory note.'' And so would a promise to pay a certain sum " in such manner and proportions, and at such time and place as A. ' Goss V. Nelson, 1 Burr. 236. ' Goode V, Colehan, 3 Stra. 1817 ; Mdliier v. Successors of Henne, 346. = Bristol V. Warner, 19 Conn. 7. ' Conn v. Thornton, 46 Ala. 588. ' Worth V. Case, 43 N. Y. 363. • Andrews v. FranMin, 1 Stra. 24; Evans v. Underwood, 1 Wils 262. ' 1 Parsons, 40; Edwards, 143. ' Sacliett v. Palmer, 35 Barb. 178. • Massie v. Belford, 68 111. 390. " Preston v. Dunham, 42 Ala. 317. " Protection Insurance Co. v. Hill, 31 Conn. 534. See Stillwell v. Craig, 58 Mo. 17, where note payable in installments not to exceed 10 per cent, on each share, at thirty days' notice of call from board of directors, was held negotiable. 40 DEFINITION AND KEQUISITES OF BILLS AND NOTES. shall require," being payable on demand ; ^ but a like promise to pay at such times and in such articles as C. may need for support, would not, the medium of payment not being money .^ A written instrument acknowledging receipt of a certain sum, and promising to pay it to a certain party " on return of this receipt," has been held a perfect negotiable note in New York, and its return was regarded as not of the essence of the contract.^ If the note be in part for a sum certain, and part upon a contingency, it will not be negotiable.* § 48. If a promissory note be made payable by install- ments, with a condition that if default be made in the pay- ment of the first installment by the maker, the whole shall be immediately payable, it is negotiable within the statute of Anne. It is not payable upon a contingency, or at a time uncertain, but is likened to a bill payable at a certain time after sight ; and the period or periods when it shall be done is dependent on the act of the maker himself^ In Michigan, where the promise was to pay "$1,500, to be paid 20 per cent, a month from the 1st July, 1871," towards building a certain road, the note was held negotiable.® And in Illinois, where a note is not payable to a corporation or order " in such in- stallments, and at such times as the directors of said company may from time to time require," the like decision was ren- dered, Sheldon, J., saying : " It was in effect payable on de- mand, or in installments on demand." '' ' Goshen T. Turpin, 9 Johns. 217 ; Washington Co. Mutual Ins. Co. v. Miller, 26 Vt. 77. ' Corbett v. Steinmetz, 15 Wise. 170. ' Frank v. Wessels, 64 N. Y. 1.58, Church, Ch. J., saying of the paper : "It contains an express promise to pay Feist or order a specified sum of money upon demand, with interest. These are the statutory elements of such a (negotiable promissoiy) note." 1 R. S. 721, § 7. "The words, ' on the return of this receipt,' do not make it payable upon a contingency, or constitute a condition precedent to any payment. * * * This restriction would be implied, if not expressed ; it is implied in every promissory note; and there is also an implied exception on account of mistake or accident. * * * This clause is not of the essence of the contract." See ante, § 45. ' Palmer v. Ward, 6 Gray, 340. =• Carlin v. Kenealy, 12 M. & W. 139. ' Wright V. Irwin, 33 Mich. 32. ' White v. Smith, 77 111. 851 (1875). CERTAINTY AS TO THE FACT OP PAYMENT. 41 § 49. Cases arising out of Confederate war. — During the war between the United States aud the Confederate States, obligations were frequently given, payable when, or a certain time after, peace should be declared. Where a note was ex- pressed to be payable " six months after peace is declared between the United States and the Confederate States of America," it was held actionable six months after peace ensued."^ And the like ruling prevailed as to a note payable "thirty days after peace between the C. S. and the U. S.," ^ and as to a note payable "one day after the treaty of peace." ^ But in West Virginia, where a bond was payable " six months after the ratification of peace between the U. S. and C. S.," it seems to have been regarded as a wager upon the success of the Confederacy ; but the case went off on a formal point.* In North Carolina, this view has been adopted and applied,^ and certainly is not without force. Only the United States Senate can ratify a peace, and a peace ratified between two countries implies the independence of each. And further, it may be said that until the condition prece- dent is fulfilled, no liability accrues. But upon the principle '■'■res magis valeat, quam pereat^'' we think the better view is that " six months after peace " would fulfill the meaning of the terms as they were used in the country, though they are the very words of Confederate treasury notes; and it has been so decided in Texas.^ § 50. Instnruments payable out of a particular fund not ne- gotiable. — In accordance with these principles, the character of the instrument as a bill or note is destroyed if it be made payable expressly or by implication out of a particular fund ; for its payment becomes then conditioned on the sufliciency • Brewster v. Williams, 2 So. Car. 455 (1871). ' Mortee v. Edwards, 20 La. An. 236 (1868). ■« Gaiues v. Dorsett, 18 La. An. 563 (1866). * Harris t. Lewis, 5 W. Va. (Hagans), 576 (1872). 6 McNinoh v. Ramsey, 66 N. C. 229 (1872). ' Knight V. McReynolds, 37 Tex. 304. A ease arose in the Supreme Court of Appeals of Virginia, involving this question (Phelps v. Moomaw), but it was compromised, and never came to trial. The inferior court ruled as in Texas. 42 DEFINITION AND REQUISITES OF BILLS AND NOTES. of that fund, wbicli may prove inadequate.^ Thus the iuser- tion, in an order of A. ujdou B. to pay a certain sum, of the words " on account of brick work done on a certain build- ing,"^ or "out of any money in his Lands belonging to me,"* have been held to imply contingencies, and non-negotiable. So, also, where the paper was expressed as payable " for value received in stock, ale, brewing vessels, &c., this being intended to stand against the undersigned as a set-ofF for the sura left me in my father's will, above my sister's share," ■* and where the words were added "out of rents," ^ "out of my growing substance," " " out of the net proceeds of certain ore," ^ or " out of a certain claim," ^ " out of a certain pay- ment when made,"^ or "the demand I have against the estate of A.," ^" or " out of my part of the estate of A.,"" or "being the amount that came to you from B. tome," ^* or " out of the proceeds of A.'s bond," ^^ or " and deduct the same from my share of the profits of the partnership." ^* " Wadlington v. Covert, 51 Miss. 631. - Pitman v. Crawford, 3 Grat. 127; Edwards on Bills, 143. ^ Averett's Adm. v. Booker, 15 Grat. 165, Lee, J. : " Here, the sum to he paid is not payable absolutely and at all events. It is payable out of a particular fund, to wit, tbe moneys, if any, in the hands of the drawee, belonging to the drawer. The draft, therefore, cannot be treated as a bill of exchange, nor can a recovery be had upon it as such." Jenney v. Hearle, 2 Ld. Raym. 1361. * Clarke v. Perceval, 2 B. c& Ad. 660. » 1 Parsons N. & B. 43. ° Josselyn v. Lacier, 10 Mod. 294. ' Worden v. Dodge, 4 Denio, 159. » Richardson v. Carpenter, 47 ]^. Y. 661 ; Corbett v. State, 24 Ga. 287. ° Hay dock v. Lynch, 2 Ld. Raym. 1563. '" West V. Forman, 24 Ala. 400. " Mills v. Kuykendale, 2 Blackf. 47. " Hiirriman v. Sanborn, 43 N. H. 128. " Kenny v. Hinds, 44 How. Pr. R. 7. " Munger v. Shannon, 61 N. Y. 258, Dwight, C. : '■ The present order, it should be observed, is payable out of an uncertain fund, from profits, and, of course, none may be realized. This fact deprives it of an element essential in a bill of exchange, which is that it be payable absolutely, and not upon a con- tingency. * * * I think that the true construction of the present order is, that it was an equitable assignment of a certain amount of the profits of the business of L. A. Guliok. Cowperthwaite v. Sheffield, 3 N. Y. 243, is not op- posed to this view, since, in that case, there was nothing on the face of the bills to indicate that they were drawn on a specific fund, but they were in the ordinary forms of bills of exchange. The same remark is to be applied to Harris v. Clark, 3 N. Y. 93." CERTAINTY AS TO THE FACT OF PAYMENT. 43 § 51. Indications as to mode of reimibursement. — The statement as to a particular fund in a bill, however, will not vitiate it, if inserted merely as an indication to the drawee how to reimburse himself, or to show to what account it should be charged. Thus, where the bill said, " and charge the same against whatever amount may be due me for my share of fish," it was held a mere indication of the means of reimbursement, and the payment not limited to the proceeds of the fish.^ So, where A. B. directed the defendant in writ- ing to pay the plaintiff or order £9 10s, " as my quarterly half pay, to be due from 24th of June to 27th of September next, by advance," the court held it a good bill, saying, " The mention of the half pay is only by way of direction how he shall reimburse himself, but the money is still to be advanced on the credit of the person." ^ So it was held where the expression used was, " pay A. L., or ordei'," it will be in full of certain judgment;^ or that it is "secured ac- cording to the condition of a certain mortgage ; " * or that it was " given in consideration of a certain patent right ; " ^ or " as part pay for a piano forte," or for any other considera- tion." The statement that collateral security has been de- posited for the performance of the promise contained in the bill or note is a recital only which does not affect its negoti- ability;' and though the recital contain the terms of the deposit, that does not alter the case, for it renders neither the amount, the time of payment, the payee, nor the engagement to pay uncertain.® ~% ' Eedman v. Adams, 51 Me. 433; Edwards on Bills, 144; see §§ 41, 797. » Macleod v. Snee, 3 Slra. 763; 3 Ld. Raym. 1481. = Ellett V. Britton, 6 Tex. 239. • Littlefield v. Hodge, 6 Mich. 336; Howry v. Eppinger, 34 Mich. 39. In this case the note contained the memorandum " secured by mortgage." Held, not to affect it. See Koberts v. Jacks, 31 Ark. 597; Duncan v. Louisville, 13 Bush (Ky.) 385. ' Hereth v. Meyer, 33 Ind. 511. " Preston v. Whitney, 33 Mich. 360; Wright t. Irwin, 33 Mich. 33; Collins V. Bradbury, 64 Me. 37 ; see §§ 41, 797. ' Wise V. Charlton, 4 A. & E. 786; Pancourt v. Thorne, 9 Q. B. 313. ' Towne v. Rice, 133 Mass. 74; Arnold v. Rock River, &c. R. R. 5 Duer, 207. 44 DEFINITION AND REQUISITES OF BILLS AND NOTES. § 52. The rule seems to be that if the memorandum or collateral agreement impairs the essential characteristics of certainty necessary to negotiable paper, it destroys its nego- tiability, but otherwise not. A promise to pay S. or order $1,000, or upon surrender of "this note," to issue stock for the same, does not violate this rule, and is a good note, the Option to receive the stock being entirely with the payee.^ So it was held in Wisconsin that a note, otherwise negotiable, was not tlierein affected by the fact that it contained a memorandum that, if the maker failed to pay it at maturity, the whole amount of the premium on a policy of insurance, for which it was given, should be considered earned, and the policy void.'^ The negotiability of a promissory note payable to order is not restrained by the circumstance of its being given for the purchase of real property in Louisiana, and tlie notary before whom the contract of sale was executed writing upon it tke words " ne varietur^'' according to the laws and usages of that State, and others governed by the civil law.** SECTION lY. CEETAINTT AS TO THE AMOUNT TO BE PAH). § 53. Ill the fourth place, the amount to he paid must he certain} Therefore, the instrument is not negotiable if it en- gages to pay a certain sum " and all other sums which may be due," as the aggregate amount is not capable of definite ascertainment.'' So, if it be for a certain sum " and Avhatever ' Hodges V. Shuler, 33 N. Y. 114. = Kirk V. Dodge County Mutual Ins. Co. 39 Wise. 138. = Fleckner v. Bank of U. 8. 8 Wheat. 338. • Gaar v. Louisville B. Co. 11 Bush (Ky.) 180. ' Smith V. Nightingale, 3 Stark. 375. CERTAINTY AS TO THE AMOUNT TO BE PAID. 45 sum you may collect of me for C. ; " ^ or if it be for " the proceeds of a shipment of goods, value about £2,000, con- signed by me to you ; " ^ or " the demands of the sick club in part of interest ; " ^ or " a certain sura, the same to go as a set off ; " * or if it be expressed " deducting all advances and expenses ;"« or if it be for " $800 and such additional pre- mium as may be due on policy No. 218.171." " But, id cer- ium est quod cerium reddi poiest, and if the amount can be ascertained from the face of the paper, the form of expression is immaterial. Therefore, a promise to pay bearer a certain sum per acre for so many acres as a certain tract contained, was held to be a note as soon as the number of acres was in- dorsed upon it.'^ § 54. If there be added to the amount " with current ex- change on another place," the commercial character of the paper is not impaired, as that ^ is capable of definite ascer- tainment.^ Exchange is an incident to bills for the transmis- sion of money from place to place. Its nature and effect are well understood in the commercial world, and merchants having occasion to use their funds at their place of busihess, sometimes make the currency at that point the standard of payments made to them by their customers at a different point. Exchange preserves the equivalence of amounts in value, and does not introduce such an element of uncertainty as destroys the negotiability of the bill or note which em- bodies it in its terms.9 But there are cases which hold that an agreement to pay exchange destroys the negotiable character ' Legro V. Staples, 16 Me. 353 ; Lime RookF. & M. Ins. Co. v. Hewitt, 60 Me. 407. " Jones V. Simpson, 3 B. & C. 318. = Bolton v. Dugdale, 4 B. & Ad. 619. ' Clark V. Percival, 3 B. & Ad. 660. ' Cashman v. Haynes, 30 Pick. 133. = Marrett v. Equitable Ins. Co. 54 Me. 537. ' Smith v. Clopton, 4 Tex. 109. ' Smith V. Kendall, 9 Mich. 341 ; Leggett v. Jones, 10 Wise. 34 ; see, also, ©rutacup V. Woulloise, 3 McLean, 581 ; Price v. Teal, 4 McLean, 301 ; Johnson v. Frisbie, 15 Mich. 386 ; Bradley v. Lill, 4 Bissell, 473. See Pollard v. Hemes, 3 B. & P. 335, where a paper " payable in Paris, or, at the choice of the bearer, at the Union Bank in Dover, or at H.'s usual residence in London, according to the course of exchange upon Paris," was declared on and treated as a promissory note. ' Smith V. Kendall, 9 Mich. 343. 46 DEFINITION AKD REQUISITES OF BILLS AND NOTES. of the paper, and renders it a special promise requiring proof of consideration.^ Where there is such an addition to a bill or note, payable where it is drawn, it is clear that it might be rejected as surplusage, there being in such case no exchange.^ SECTION V. CERTAINTY AS TO THE MEDIITM OE PAYMENT, WHICH MUST BE MONEY. § 55. Ill the fifth place, the medium of payment must he money. It is indispensably requisite, in order to constitute a bill of exchange or negotiable promissory note, that the direc- tion or promise be to pay in money.* And if the instrument be expressed to be payable " in cash or specific articles," in the alternative,* or in merchandise, as for instance, " in good merchantable whisky at trade price," * or " in ginned cotton at eight cents per pound," * or " in work," ^ it becomes a special contract, and by the law merchant loses its character as commercial paper. Nor can it be for payment in " good East India bonds," ^ or in "foreign bills," ^ or by bill or ' note.^ A bond payable " in notes of the United States Bank, or either of the Virginia banks," has been held not payable in money;" but where the bond was for a certain sum, and it was added, " which sum may be discharged in notes or bonds due on good solvent men in R,," it was held payable ' Lowe V. Bliss, 24 111. 168 ; Read v. McNulty, 12 Rich. (Law), 445. In Russell V. Russsell (1 McArthur, 263 [d874]), it was held that a note made and payable in Michigan, " with current exchange on New York," was not negotiable, the court regarding the sum as uncertain, so that an indorsee could not sue in his own name. ' Clauser v. Stone, 29 111. 116 ; Hill v. Todd, 20 III. 103; Eyles on Bills (Shars- wood's ed.) 73. ' Chitty on Bills [*132], 153. * Matthews v. Houghton, 2 Fairfax, 377. ' Rhodes v. Lindley, Ohio Cond. 465; Chitty on Bill [*132]. ' Lawrence v. Dougherty, 5 Yerg. 433. ' Quimby v. Merritt, 11 Humph. 439. ■ Smith V. Boehm, Chitty, Jr. 234. " Jones v. Fales, 4 Mass. 345 ; Young v. Adams, 6 Mass 182. '° Chitty on Bills [*132 3], 153. " Eeirne v. Dunlap, 8 Leigh, 514. THE MEDIUM OF PAYMENT MUST BE MONET, 47 in money .^ But the courts would not go so far, we think, as to hold an instrument couched in such terms negotiable,^ for, in order to possess that quality, it should afford on its face every element necessary to fix its value, and such a paper would be a special contract rather than a negotiable bill or note. § 56. Instruments payable in hanTc hills, or in cv/rrency. Strictly pursuing this principle, it has been held in England that a note payable in cash, or bank of England notes, was not negotiable under the statute of Anne, though the bills of that bank were at any time redeemable in money.^ In Pennsylvania, this ruling was followed upon an instrument payable in " current bank bills or notes," the court remarking that " it was payable in more than forty kinds of paper of different value." * The Supreme Court of the United States has applied it where the note was payable in the " office notes of a bank." ® When the medium of payment is ex- pressed to be " good current money," or " current money," it is not objectionable, as legal tender money is intended ; ^ but if it be " in currency " simply, the paper is not negotiable, as the term includes all varieties of the circulating medium.'^ ■ ' Butcher v. Carlisle, 12 Gratt. 520. ' Williams v. Sims, 23 Ala. 513. ' Ex parte Iveson, 2 Rose, 225. * McCormick v. Trotter, 10 Serg. & R. 94. ' Irvine v. Lowry, 14 Peters, 293. " Wharton v. Morris, 1 Dallas, 124; Graham v. Adams, 5 Ark. 301 ; Wilburn V. Greer, 6 Ark. (1 Eng.) 255 ; Black t. Ward, 27 Mich. 1 93. But contra, McCherd V. Ford, 3 T. B. Monroe, 163. ' Lampton v. Haggard, 3 Monroe, 149; Farwell v. Kennett, 7 Mo. 595. And like decisions were rendered where the bill or note was payable " in common cur- rency of ArJcansas,^' Dillard v. Evans, 4 Ark. 185 ; "m Canada bills" Gray v. Wor- den, 39 Q. B. (Upper Canada R.) 585 ; "in, hanh bills" Simpson v. Meueden, 3 Cold. 429; '' in New Yorh funds or their equivalent," Hasbrook v. Palmer, 3 Mc- Lean, 10; "in current bank bills," Fry v. Rousseau, 3 .McLean, 106; " in foreign hills," Jones v. Fales, 4 Mass. 245; "in paper medium" Lange v. Kohne, 1 Mc- Cord, 115 ; " in current bank notes," Little v. Phoenix Bank, 3 Hill, 435; Pardee V. Fish, 60 N. Y. 263 ; " in Pennsylvania or New Torh paper currency," Lieber v. Goodrich, 5 Cow. 186 ; "in current notes nf the State of North Carolina," Warren v. Brown, 64 N. C. 381 ; "in current funds at Pittsburg," Wright v. Hurt, 44 Penn. St. 454; "in eurient funds," Cornwell v. Pumphrey, 9 Ind. 135; Haddock v. Woods, 46 Iowa, 433. 48 DBPIKITION AND REQUISITES OF BILLS AND NOTES. But the decisions, as will be seen from the subjoined notes, are contradictory.^ In some cases it is held that the meaning of such phrases as -'current frinds" may be explained by parol evidence as to the understanding of the parties, and that they may be shown to have meant money? In busines ■• paper it is best to adhere to strict rules ; and as certainty is of the first moment in commercial dealings, and paper payable in fluctuating values is uncertain and de- lusive, we think sound judgment approves the doctrine of the text. Money alone is legal tender, and only the note which represents money should be held negotiable. It should be expressed simply as payable in dollars, which have a definite signification fixed by law.^ § 57. It has been suggested that since Congress has de- clared and the Supreme Court held, that the treasury notes of the United States shall be " legal tender " in discharge of debts, the terms " in currency " should be construed to mean legal tender currency, and instruments so payable should be deemed negotiable. But " the very reverse of this proposi- tion is true," as said in Iowa, in respect to a certificate of ' In the following cases, instruments expressed to be payable as indicated were held negotiable: " in. current funds,'" Shoemaker's Bank v. Street, 16 Ohio, N. S. 5; "m current Ohio lanh notes," Swetland v. Creigh, 15 Ohio, 118; ''in- current funds of the State of Ohw," White v. Kichmond, 16 Ohio, 5 ; " in funds current in the city of New Torh,^^ Lacy v. Holbrook, 4 Ala. 88; ''in good current money of this State (or in Arkansas money)," Graham v. Adams, 5 Ark. 361 ; Wilburn v. Greer, 1 Eng. 255 ; but otheiTvise, if " in Arkansas money of the Fay- etteville Iranch," Hawkins v. Watkins, 5 Ark. 481 ; in New York, "in YorTc State dills or specie,'' Keith v. Jones, 9 Johns. 130; "in banknotes current in the city of New YorTc,'' Judah v. Harris, 19 Johns. 144; "in Nmth Carolina lanh notes," De- berry V. Darnell, 5 Terg. 451 ; " in lawful current nwney of Pennsylmnia," Whar- ton V. Morris, 1 Dallas, 134 ; " in foreign money," Sanger v. Stimpson, 8 5Iass. 260 ; '•in currency," Butler v. Paine, 8 Minn. 331 ; Hunt v. Divine, 37 111. 137; Swift T. Whitney, 30 111. 144 ; Laughlin v. Marshall, 19 ^11. 390 ; Peru v. Farnsworth,18 111. 563: Drake v. Markle, 21 Ind. 433; Fry v. Dudley, 30 La. An. 368 ; " in cur- rency of the State of Mississippi," Mitchell v. Hewitt, 5 Smedes & M. 361; "in currency of Missouri," Cockrell v. Kirkpatrick, 9 Mo. 688; "in New York State currency,'' Bhie v. Chittenango Bank, 34 N. Y. 548. ' Haddock v. Woods, 46 Iowa, 435 ; Huse v. Hamblin, 39 Iowa, 501 ; Pilmcr V. Branch Bank, 16 Iowa, 321. ' Omohundro y. Crump, 18 Grat. 703. THE MEDIUM OF PAYMENT MUST BE MONEY. 49 deposit payable in currency. And, continued Beck, J. : " It is evident that it was not intended that payment should be made in coin, or ' legal tender ' government notes. The holder of the paper could have demanded payment thereon in ' legal tender ' money, vs^ithout any words in the instru- ment indicating the currency in which j)ayment should be made. * * Some other medium of circulation is described by the word currency." ^ In Arkansas, it has been held that a note payable " in greenback currency " was negotiable, be- cause legal tender currency, and not national or other bank notes was intended ; ^ and in New York it has been said by Church, Ch. J. : " The objection that the instrument is not a promissory note because payable in paper currency, is an- swered by the suggestion that this must be taken to refer to the legal tender paper currency which under the United States laws and decisions is money." * § 58. It is not necessary, however, that the money should be that current in the place of payment, or where the bill is drawn ; it may be in the money of any country whatever.^ But it has been held that it is necessary that the instrument should express the specific denomination of money when it is payable in the money of a foreign country, in order that the courts may be able to ascertain its equivalent value ; otherwise it is not negotiable. Thus in New York, where a note was given for a certain sum " payable in Canada money," it was held not negotiable ; and the court said : " This view of the case is not incompatible with a bill or note payable in money of a foreign denomination, or any other denomination, being negotiable, for it can be paid in our own coin of equivalent value, to which it is always re- duced by a recovery. A note payable in pounds, shillings and pence, made in any country, is but another mode of ex- ' Huse V. Hamblin, 39 Iowa, 344; but see Fry v. Dudley, 30 La. An. 368. " Burton v. Brooks, 35 Ark. 315. ' Frank v. Wessels, 64 N. Y. 158 (1876). ' Chitty on Bills [*133], 154 ; Story on Bills, § 43 ; Black v. Ward, 37 Mich. 198 ; Thompson v. Sloan, 33 Wend. 71. Vol. I. -4 50 DEFimTION AND REQUISITES OF BILLS AND NOTES. pressing the amount in dollars and cents, and is so under- stood judicially. The course, therefore, in an action on such an instrument, is to aver and prove the value of the sum ex- pressed, in our own tenderable coin." ^ Intention, to be gathered from the face of the paper, ac- cording to fixed rules, is the test of negotiability, and we do not see how the idea of its possessing a negotiable quality is excluded by the mere fact that the denomination of foreign money is. not set out. A case, remarkable for its learning and ability, decided by the Supreme Court of Michigan, adopts this view ; and there it has been held that a note payable " in Canada currency " is negotiable, the terms being equivalent to Canada money.^ SECTION Yl. THE CONTEACT MUST BE ONLY FOE THE PAYMENT OF MONET. § 59. In the sixth place it is essential to the negotiabil- ity of the bill or note, that it purport to be only for the pay- ment of money .^ Such at least may be stated to be the gen- eral rule, for if any other agreement of a different character ' Thompson v. Sloan, 33 Wend. 71. " Black V. Ward, 37 Mich. 193 (1873), Campbell, J., saying: "A note payable in Canada currency means no more and no less than that it is payable in Canada money at the Canada standard, and that it is governed as to the amount it calls for by the same rules as if it had been made in Canada, and payable in so many dollars, without containing any further direction." " It is evident the language was used to exclude the idea that it should be paid in dollars according to our paper standard, and to put it on the footing of a gold contract." " It is urged that this is superfluous, and that as every one is presumed to know the law, it would not have been put in except for some purpose which would change its legal import. The objection appears to us to be far fetched and unreasonable. This case cited above sutHciently answers it. A very large proportion of the bonds and deeds drawn up in this country describe the money secured or paid as ' lawful money of the United States,' when there can be no other lawful money in the republic, and when it is clearly superfluous." ' Fletcher v. Thompson, 55 N. H. 308. COKTRACT MUST BE ONLY FOE PAYMENT OP MONEY. 51 be engrafted upon it, it becomes a special contract clogged and involved witb other matters, and has been deemed to lose thereby its character as a commercial instrument. But at the present time we think that this general rule is subject to the qualification, that if the superadded agreement do not impair the certainty of the promise to pay the certain amount named, but only facilitates the means of its collec- tion, it does not in any degree destroy the negotiability of the instrument, but is embodied in the contract of all the parties, and passes as an incident of the paper itself to every holder. § 60. In accordance with the general rule above stated, it has been held that if a note for a certain amount be given for the hire of a neigro, to wbich is added, " said negro to be furnished with the usual quantity of clothing^ was not a negotiable promissory note, but a special contract for the hiring and clothing of the negro.^ And this seems to us clearly the correct doctrine, though the view has been taken that such a paper is negotiable, the obligation to pay the money only passing to an indorsee.^ So it has been held that if the instrument be to pay money, and also " to deliver up horses and a wharf; "^ or to pay money " and take up a certain outstanding note," * it is not a negotiable note. So if it be to pay money " and all fines according to rule," it is not a negotiable note, and the additional words cannot be construed as insensible surplusage. " It is quite possible," said Parke, B., " that they have a meaning, and may import that certain pecuniary fines or forfeitures are to be paid by the defendants ; and, if so, this is certainly no promissory note within the statute, but is a specific agreement to do cer- tain things.^ So, likewise, where the following words were added^ the ' Barnes v. Gorman, 6 Rich. 297. ' Baxter v. Stewart, 4 Sneed, 313 ; Gaines v. Shelton, 47 Ala. 413. ' Martin v. Chauntry. 2 Strange, 1271. * Cook v. Satterlee, 6 Cow. 118. ' Ayrey v. Fearnsides, 4 Mees. & W. 168. 52 DEFINITION AND KEQTJISITES OF BILLS AND NOTES. instruments were held special agreements and not negotia- ble : " If any dispute should arise about the sale of goods for which the note is given, it is to be void/ or it is " only a security for all balances up to its amount." ^ So if it provide that the payee is to receive less than tbe principal sum if it be paid before matui'ity.^ So, where the promise was to pay H. a certain amount, adding, " and said H. is to build a barn and fence, and said P. (the promissor), is to have all the land back of the house." * § 61. Additions of power to confess judgments, of vmivers of exceptions, and of stipulations to pay collection fees. — Some- times it is stated in the note that (1) the promissor appoints the payee, or order, or holder to confess judgment for him Avhen the note is payable ; or (2) waives benefit of appraise- ment laws, or homestead exemptions, where sucli laws or exemptions exist ; or (3) stipulates for payment of collection, and attorney's fees. The authorities differ as to the negotia- bility of such instruments ; but the later cases maintain that they are, and the principle is becoming established that, if the note is in itself certain and perfect without conditions, and there is merely superadded the provision or declaration that the payee or holder may confess judgment for the maker ; or that certain remedies are granted, or rights w"aived in respect to its collection, then the negotiability of the paper is not destroyed.^ The leading case of Overton v. Tyler, 3 Barr, 346, in which a power to confess judgment engrafted on the note was held to render it non-negotiable," ' Hartley v. Wilkinson, 4 Camp. 137. ' Leeds v. Lancasliire, 2 Camp. 205. ' Fralick v. Norton, 2 Mich. 130. " Fletcher v. Thompson, 55 N. H. 308. « 2 Parsons, N. & B. 147. " Zimmerman v. Anderson, 67 Penn. St. 421. In this case the following note was sued on by the indorsees against the maker : '■ Township of Buffalo, March 20, 1868. $125.00. Six montlis after date I promise to pay to E. W. Lowe, or order, one hundred and twenty-five dollars, for value received, with interest, waiving the right of appeal, and of all valuation, appraisement, stay, and ex- emption laws." Signed, Moses Anderson, and indorsed by E. W. Lowe. The defense was failure of consideration, grounded on the alleged non-negotiability of the note. But it was held negotiable. Read, J., saying : " The paper in this CONTRACT MUST BE ONLY FOE PAYMENT OF MONEY. 53 does not now seem to be followed by the State courts as a general rule ; and the declaration of Chief Justice Gibson in that case,' that " a negotiable bill or note is a courier without case comes within all the definitions of the best text writers of a promissory note, for it is a written promise by the defendant to pay to E. W. Lowe, or order, $135, six months after date, for value received, with interest, absolutely and at all events. But it is urged that the words ' waiving the right of appeal, and of all valuation, appraisement, stay and exemption laws," destroys its nego- tiability. In what way ! They do not contain any condition or contingency, but after th?. note falls due and is unpaid, and the maker is sued, facilitate the colloction by waiving certain rights which he might exercise to delay or impede it. Instead of clogging its negotiability it adds to it, and gives additional value to the note. * * * These principles and cases clearly prove this to be a regular negotiable promissory note ; but we are met by the case of Overton v. Tyler, in 3 Barr, 340, decided by this court a quarter of a century ago, which, however, is plainly distinguished from the one before us. In Overton v. Tyler, the pnyment was fixed for a day named specifically in the instrument, with a regular power of attorney to confess judgment, upon which a judgment was entered on the 10th March, and execution issued thereon on the 2d of June, one day after the money was payable, and the waivers which followed all related to the judgment thus entered two months and twenty-one days before the paper fell due. It is unnecessary to say how far this ruling is sustained by the author- ities, for, if perfectly good and sound law, it does not touch the present case." While the court distinguishes this case from Overton v. Tyler, 3 Barr, 346, it draws a very fine distinction — one without a material difference, and it evidently does not regard that case with much favor. In Overton v. Tyler the note ran : " For value received I promise to pay Francis Tyler and Levi Westbrook, or bearer, one thousand dollars with interest, by the first day of June next. And I do hereby authorize any attorney of any court of record in Pennsylvania to appear for me and confess judgment for the above sum to the holder of this single bill, with costs of suit, hereby releasing all errors and waiving stay of execution, and the right of inquisition on real estate; also waiving the right to have any of my property appraised which may be levied upon by virtue of any execution issued for the above sum." Gibson, C. J., said: " A negotiable bill or note is a courier without luggage. It is requisite that it be framed in the fewest possible words, and those importing the most certain and precise contract ; and though this requisite be a minor one, it is entitled to weight in determining a question of intention. To be within the statute, it must be free from con- tingencies or conditions that would embarrass it in its course ; for a memorandum to control it, though indorsed on it, would be incorporated with it and destroy it. But a memorandum, which is merely directory or collateral, will not affect it. The warrant and stipulations incorporated with this note evince that the object of the parties was not a general, but a special one. Payment vcas to be made, not as is usual at so many days after date, but at a distant day certain ; yet the negotiability of the note, if it had any, as well as its separate existence, was instantly liable to be merged in a judgment, and its circulation arrested by 54 DEFINITION AND REQUISITES OP BILLS AND NOTES. luggage," is answered by the assertion ttat such provisions facilitate rather than incumber the circulation of such instru- ments. They are not luggage, but ballast. § 62. Uj)on the same principle that power to confess judgment is not, by the later cases, considered to impair the negotiable quality of the instrument, it has been held that an agreement added, " if not paid tVhen due and suit brought thereon, I hereby agree to pay collection and attorney's fees thereon," does not impair it.^ Nor do the addition of such fees render a bill or note, otherwise unimpeachable, usu- rious.^ Such fees need not be sued for by the attorney, but tbe debt being attached, as an encumbrance to the maker's land ; and it was actually merged when it had nearly three months to run. Now it is hard to conceive how the commercial properties of a bill or note can be extinguished before it lias come to maturity. That is not all. A warrant to confess judgment, not being a mercantile instrument, or a legitimate part of one, but a thing col- lateral, would not pass by indorsement or delivery to a subsequent holder ; and a curious question would be, whether it would survive as an accessory separated from its principal, in the hands of the payee, for the benefit of his transferee, I am unable to see how it could authorize him to enter up judgment, for the use of another, on a note with which he had parted. But it may be said that his transfer would be a waiver of the warrant as a security for himself or any one else; and that subsequent holders would take the note without it. The principle is certainly applicable to a memorandum indorsed after signing, or one written on a separate paper. But the appearance of paper with such unusual stipula- tions incorporated with it would be apt to startle commercial men as to their effect on the contract of indorsement, and make them reluctant to touch it. All this shows that these parties could not have intended to impress a commercial character on the note, dragging after it, as it would, a train of special provisions which would materially impede its circulation." See Sweeney v. Thickstun, 77 Penn. St. R. 131. In Osborn v. Hawley, 19 Ohio, 130, it was held that a power of attorney added to, and as part of a note, did not affect its negotiability. ' Sperry v. Horr, 32 Iowa, 184. See also, to the same effect, Smith v. Muncie National Bank, 29 Ind. 158; Wyant v. Pattorf, 87 Ind. 512; Hubbard v. Har- rison, 38 Ind. 323; Stoneman v. Pyle, 85 Ind. 104; Johnson v. Crossland, 34 Ind. 384; Dietrich v. Baylic, 23 La. An. 767; Gaar v. Louisville B. Co. 11 Bush. (Ky.) 1 80 ; Nickersen v. Sheldon, 33 111. 373. In Seaton v. Scoville (18 Kansas. 433 ; 16 Alb. L. J. 148 (1877), 21 American R. 212), the Supreme Court of Kansas held a paper promising to pay a certain sum, " also costs of collecting, including reasona- ble attorney's fees, if suit bo instituted on this note," to be a good negotiable note. ' Stoneman v. Pyle, 35 Ind. 104 ; First National Bank v. Silvers, 34 Ind. 149; Smith V. Silvers, 32 Ind. 321. OONTEAOT MUST BE ONLY POK PAYMENT OF MONEY. 55 are recoverable by the holder.^ And the liability for them, as for fevery engagement, imported by the bill or note, enters into the acceptor's ^ and indorser's contract.* But the decis- ions illustrating these doctrines are not uniform, and in Pennsylvania, where the note contained a warrant of attor- ney to enter judgment for the amount, and five per cent, col- lection fees, it was held not negotiable.* So, in that State where to the note was added, " and five per cent collection fees if not paid when due," it was held not negotiable, Shars- wood, J., saying : "It is a necessary quality of negotiable paper, that it should be simple, certain, unconditioiial, and not subject to any contingency. * * Interest and costs of protest after non-payment at maturity are necessary legal incidents of the contract, and the insertion of them in the body of the note would not alter its negotiability. Neither does a clause waiving exemption, for that in no way touches the implicity and certainty of the paper. But a collateral agreement as here, depending too, as it does, upon its reason- ableness, to be determined by the verdict of a jury, is en- tirely different." ^ The holder must prove the amount of the attorney's fees in order to recover them.^ ' Johnson y. Crossland, 34 Ind. 334. But it has been held in Ohio that a stipulation for a certain per centage, besides interest, for collection fees is usuri- ous. State v. Taylor, 10 Ohio, 378 ; Shelton v. Gill, 11 Ohio, 417. "" Smith V. Muncie National Bank, 29 Ind. 158. " Hubbard v. Harrison, 38 Ind. 333. * Sweeney v. Thickstun, 77 Penn. St. 131. ' Woods V. North, 84 Penn. St. 410 (1877). In First Nat. BankV. Gay, 63 Mo. 33 (1876), there was added to the promise : " And if not paid at maturity, and the same is placed in the hands of an attorney for collection, we agree and promise to pay an additional sum of ten per cent, as attorney's fee. Held not a promissory note, nor negotiable. « Wyant v. Pattorf, 37 Ind. 512. In Stoneman v. Pyle, 35 Ind. 103 (1871), the note contained a stipulation for the payment of attorney's fees. Worden, J., said: " As the note was payable at a bank in this State, it is governed by the law mer- ' chant, and the holder thereof is entitled to all the rights of a holder of commercial paper, unless the clause in the note stipulating for the payment of attorney's fees, in case suit should be commenced thereon, takes it out of that class of paper. It is earnestly urged by counsel for the appellee, that the provision above indicated 50 DEFINITION AND REQUISITES OF BILLS AND NOTES. SECTION YII. DELIVEET. § 63. In the seventh place the instrument must he deliv- ered. — Delivery is the final step necessary to perfect the existence of any written contract ; and therefore as long as a bill or note remains in the hands of the drawer or maker it is a nullity.^ And even though it be placed by the drawer or maker in the hands of his agent for delivery, it is still undelivered as long as it remains in his hands, and may makes the amount of the note uncertain, and therefore that it does not come within the legal requirements of commercial paper. It may be conceded that a note, in order to be placed upon the footing of bills of exchange, must be for a sum certain ; for in no other way can the maker know precisely what he is bound to pay, or the holder what he is entitled to demand. But the note in question, if paid at maturity, or after maturity, but before suit brought thereon, is for a sum certain. On the maturity of the note the maker knew precisely what he was bound to pay, and the holder what he was entitled to demand. In the commercial world, commercial paper is expected to be paid promptly at maturity. The stipulation for the payment of attorney's fees could have no force except upon a violation of his contract by the defendant. Had the defendant kept his contract, and paid the note at maturity, or afterwards, but before suit, he would have been required to pay no attorney's fees, nor would there have been any dif- ficulty as to the extent of his obligation. "We see no reason, on principle or authority, or on grounds of public policy, for holding that such a stipulation destroys the commercial character of paper otherwise having that character. See Smith v. Silvers, 33 Ind. 321. The case is quite analogous to a class of cases on the subject of usury. Says Mr. Parsons : ' So, if the borrower agrees to pay the sum borrowed at a time certain, or on demand, with lawful interest, and if he fail to do so, so much more by way of penalty ; even if it be called extra interest, this is not such usury as would affect the contract, because the borrower has the right to pay the principal and avoid the penalty.' 2 Parsons Notes and Bills, 413, 414. So here the defendant had the right to pay the face of the note when due, and avoid the attorney's fees. As long as the note retained the peculiar characteristics of commercial paper, viz., up to the time of its maturity and dishonor, the amount to be paid on the one hand, and recovered on the other, was fixed and definite." ' Bailey v. Taber, 5 Muss. 386 ; Marvin v. McCuIlum, 30 Johns. 288; Freeman ' V. Ellison, 37 Mich. 459; Lansing v. Caine, 3 Johns. 300; Woodford v. Dorwin, 3 Vt. 83 ; Ward v. Churn, 18 Grat. 801 ; Hopper v. Eiland, 31 Ala. 714 ; Rich- ards V. Darst, 51 111. 141; Roberts v. Bethell, 13 C. B. 778; Cox v. Troy, 5 B. & Aid. 474 ; Howe v. Ould, 28 Grat. 7 ; Bartlett v. Same, Id. DELIVERY. 57 be recalled ; and, while there, the payee has no right to it, unless it be wrongfully withheld by the agent.^ It is not necessary, however, to aver the delivery of a bill or note, for the averment that a bill was drawn or a note made includes the idea of a delivery, without which the drawing or mak- ing is not complete.^ So essential is delivery, that it has been held that where a promissory note, the writing of which was unknown to the grantee, lay in the grantor's possession, and was found amongst his papers after death, the payee could not claim or sue upon it ; * and though such a note should be found, accompanied with written directions to deliver it to the payee, the payee will still have no right of action, unless the directions be valid as a testament.'* It is to be observed, however, that delivery may be con- structive as well as actual, by manual passing of the instru- ment. A direction to a third jDerson who is in actual custody thereof, to hold it subject to the payee's or trans- feree's order ; or an order to the depositary to deliver it, is sufficient in legal contemplation.® • Thomson on Bills, 90-91 ; The King v. Lambton, 5 Price, 438 ; Byles [*146], 265 ; Edwards on Bills, 186; 1 Parsons N. & B. 48-50. " Churchill v. Gardner, 7 T. R. 596 ; Smith v. McClure, 5 East, 477 ; Binney V. Plumley, 5 Vt. 500 ; Peets v. Bratt, 6 Barb. 663 ; Chester, &c., R. R. Co. t. Lickiss, 72 111. 531. " Disher v. Disher, 1 P. Wms. 304 ; Chitty, Jr. 230. ' Gough V. Eindon, 7 Exch. 48. " Howe V. Quid, 28 Grat. 7 ; Bartlett v. Same, Id. ; Fisher v. Bradford, 7 Greenl. 28 ; Richardson v. Lincoln, 5 Mete. 301 ; Mitchell v. Byrne, 6 Rich. 171. In Howe, Knox & Co. v. Ould & Carrington, 38 Grat., it api)eared that Samuel Strong, the owner of a note executed to him by Samuel Myers, indorsed it, and deposited it with the First National Bank of Richmond, Va., as collateral for a loan obtained from the bank by Betz, Youngaling & Byer. Strong sold the note to Ould, and gave him an order on the bank for it, who at once presented the order at the bank, but was informed that the president was out of town. A few days afterwards the president informed him, that the debt for which the "note was pledged was nearly paid, and that he would deliver him the note but for the fact that an attachment had been issued against it, — of the attachment which antedated the sale of the note, Ould & Carrington had no notice. It was held that they were entitled to it, — were not affected by the attachment of which they had no notice at time of purchase ; and that the constructive delivery of the note was suflScient. 58 DBriNlTlON AND BEQDISITES OF BILLS AND' NOTES. § 64. If the party who has signed or indorsed the instru- ment die before delivery, it is a nullity, and cannot be de- livered by his personal representative ; ^ but if advances had been made on the faith of a delivery, then the promisee or indorsee would be entitled to a delivery.^ It is said by Mr. Ohitty, in respect to a bill, that delivery (by the acceptor) is not essential to vest the legal interest in the payee.^ But the doctrine sustained by the authorities goes only to the extent that if the drawee actually accepts the bill, and improperly detains it in his hands, an averment that the bill was accepted is sufficient, without averment of a delivery by the acceptor.* § 65. Whenever a bill or note is found in the hands of the payee, it will be presumed that it was delivered to him,^ and that the delivery took place on the day of its date, if it be dated,^ and, at any rate, before the day of its maturity.'' But the presumption both as to the fact and the time of de- livery may be rebutted.^ As a bill or note takes effect only by delivery, so it takes effect only on delivery ; and if this be subsequent to its date, it will be binding only from that day.** But still, when deliv- ered, if it bear an anterior date, and be payable at some future day from date, the time will be computed according to its terms, and therefore by relation from its date ; for it is competent for the parties to frame their contracts to suit ' Clark V. Boyd, 3 Ohio, 56 ; Clark v. Sigoumey, 17 Conn. 511 ; Bromage v. Lloyd, 1 Exch. 32; Byles [*56], 143. " Perry v. Crammond, ] Wash. C. C. 100; 1 Pars. N. & B. 49. = Chitty on Bills [*173], 198. * Smith V. McClure, 5 East, 476 ; Story on Bills, § 303, note 3 ; Thomson on Bills, 90. ' Griswold v. Davis, 31 Vt. 890 ; Woodford v. Dorwin, 3 Vt. 83. " Cranston v. Goss, 107 Mass. 439; Sinclair v. Baggaley, 4 M. & W. 312; An- derson V. Weston, 6 Bing. N. C. 296. ' Churchill v. Gardiner, 7 T. R. 596; Smith v. McClure, 5 East. 477; Binney V. PJumley, 5 Vt. 500 ; see Chapter XXI on Transfer by Indorsement, sec. vi. ' Woodford v. Dorwin, 8 Vt. 82. ' Lovejoy v. Whipple, 18 Vt. 379. DELIVERY. 59 themselves/ and it vpill be proper to describe it as dravra on tbe day it bears date.^ § 66. If tlie bill or note bear no date, the time must be computed from its delivery ; and if the day of actual de- livery cannot be proved, it will be computed from the earliest day on which it appears to have been in the hands of the payee or any holder.^ It is not necessary to aver a date to the bill or note, but it is sufficient to aver that it was drawn or made on a certain day.* § 67. Delivery to a father of an order for an amount due his minor son is sufficient delivery in law ; ^ and so delivery to a trustee is sufficient as delivery to the cestui que trusts It is essential to delivery that the minds of both par- ties should assent, in order to bind them ; and if, through inattention, infirmity, or otherwise, one does not assent, the act of the other is nugatory. Therefore, leaving a check on the desk of a clerk ^ or the counter of a bank,^ without the knowledge of such clerk or the bank officer, is not de- livery. Where notes were executed and left with the payee's agent, who objected only to their form, but retained them, agreeing to accept them, if the form could not be changed, and it was not, it was held to be sufficient delivery.^ Placing bills or notes signed or indorsed, in the custody of the post- man, addressed to the payee or indorsee — that being the course of business between the parties — has been held, in ' Po-\vell V. Waters, 8 Cow. 669 ; Bumpass v. Timms, 3 Sneed, 459 ; Snaith v. Mingay, 1 Maule & S. 87; Barker v. Sterne, 9 Exch. 684. = Snaith v. Mingay, 1 Maule & S. 89. ' Clark V. Sigourney, 17 Conn. 51 1 ; Richardson t. Lincoln, 5 Met. 201 ; Wood- ford V. Dorwln, 3 Vt. 82. * De La Coutier v. Bellamy, 2 Show. 423 (1683) ; Hague v. French, 3 Bos. & P. 173 ; Giles v. Bourne, 6 Maule & S. 73. ' Mason v. Hyde, 41 Vt. 433. ' Tucker v. Bradley, 33 Vt. 825. ' Kinney v. Ford, .53 Barb. 194. « Chicopee Bank v. Philadelphia Bank, 8 Wall. 641. • Bodley v. Higgins, 73 111. 375. 60 BEFINITION AND REQUISITES OP BILLS AND NOTES. England, a sufficient delivery ; ^ and so depositing thera in the post office, with the assent of the payee or indorsee, is considered sufficient in the United States.^ And if a bill or note so deposited be lost on the way, and the creditor obtain a duplicate, and cause it to be demanded and protested, he may recover.^ The vendor of negotiable paper has the right of stoppage in transitic to the same extent as the vendor of other species of personal property ; and the right to the remedy applies not only as against the vendee, but as well against a creditor of the vendee who has made a loan upon the promise of the vendee to transfer the paper to him on its arrival.* § 68. Escrows. A bill or note, as well as a deed, may be delivered as an escrow — that is, delivered to a third party to hold until a certain event happens, or certain conditions are complied with — and then the liability of the party com- mences as soon as the event happens or the conditions are fulfilled, without actual delivery by the depositary to the promisee.® But there is this distinction between negotiable and sealed instruments. If the custodian of the former betrays his trust, and passes off the negotiable instrument to a bona fide holder, before maturity and without notice, all parties are bound; but if the instrument be sealed, the rule is otherwise. A bill or note cannot be shown to have been de- livered to the promisee as an escrow, for the evidence would be repugnant to the act." These questions are elsewhere more fully considered.'' It has been said, however, by the Court of Appeals of New York, that "instruments not under ' Rex V. Lambton, 5 Price, 438. " Kirkman v. Bank of America, 2 Cold. B97. ' Kirkman v. Bank of America, supra. ' Muller v. Pondir, 55 N. Y. 335. ' Couch V. Meeker, 3 Conn. 302 ; 1 Parsons N. ife B. 51 ; see Chapter on Bona Fide Holder, § 850 ; Taylor v. Thomas, 13 Kansas, 217. ° 1 Piirsons N. & B. 51 ; Scott v. State Bank, 9 Ark. 36; Massman v. Holscher, 49 Mo. 87; Biidcock v. Ste.idman, 1 Root (Conn.), 87 ; see joosJ, §^ 79, 81. ' See Chapter XXVI on Rights of Bona Fide Holder or Purchaser, § 856; Henshaw v. Button, 59 Mo. 139. DELIVERY. 61 seal may be delivered to the one to whom on their face they are made payable, or who by their terms is entitled to some interest or benefit under them, upon conditions, the observ- ance of which is essential to their validity. And the annex- ing of such conditions to the delivery is not an oral contra- diction of the written obligation, though negotiable, as between the parties to it, or others having notice. It needs a delivery to make the obligation operative at all, and the effect of the delivery and the extent of the operation of the instrument may be limited by the conditions with which the delivery is made." * § 69. Bills and notes made on Sunday. By the common law, there is no interdiction of secular business being con- ducted on Sunday, and, unless restrained by statute, a party may draw, make, indorse, or accept bills and notes on Sun- day, and their acts will be as valid as if done on any other Asij? By statute, however, in many of the States of the United States, no contract can be entered into on Sunday, or secular business legally conducted. Bills and notes executed and delivered on Sunday fall within the interdiction of such laws ; and the rule applicable, to such instruments is, that the plaintiif cannot recover when, in order to sustain his supposed claim, he must set up an illegal agreement, to which he himself is a party.^ But it is delivery that completes a contract, and if the bill or note be delivered on another day, it will be valid, though dated and signed on Sunday; and parol evidence is com- petent to show that it was so delivered on a different day, notwithstanding its date as of Sunday.* And when so de- ' Benton v. Martin, 52 N. Y. 574, Folger, J. = Begbie V. Levy, 1 Cromp. & J. 180; 1 Tyrw. 130; Chitty, Junior, 1516; Cliitty on Bills L*148], 171 ; Thomson on Bills, 171. ' Pope V. Iiinn, 50 Me. 86 ; Pinney v. Calendar, 8 Minn. 42 ; Bramhall v. Van Campen, 8 Minn. 13; State Capitol Bank v. Thompson, 42 N. H. 370; Smith v. Bean, 15 N. H, 577; Bank of Cumberland v. Mayberry, 4 Hub. 198; Smith v. Case, 2 Oregon, 190; Furz v. Nicholls, 2 M. G. & S. 500. 'Flanagan v. Meyer, 41 Ala. 133; Aldridge v. Branch Bank, 17 Ala. 43; 62 DEFINITION AND KEQUISIXES OF BILLS AND NOTES. livered on a different day, it is no objection to it that interest commences to run on Sunday.^ Though the note made and delivered on Sunday be void, the payee may recover upon the original consideration.^ And the weight of authority seems to be, that, although a contract be entirely closed up on Sunday, yet, if ratified by the parties upon a subse- quent day, it is valid.^ § 70. Indorsements on Sunday. — The indorsement of a bill or note on Sunday stands on the same footing as draw- ing a bill or making a note, and the indorsee cannot sue upon such an indorsement, either in his own name, or in an- other's for his benefit.* The indorsee of a bill or note made or drawn on Sunday can stand upon no better footing than his transferrer, provided he have notice of the fact. And if the bill or note bear a certain date, or it appears that it was executed upon a certain day of the month, the court will take judicial notice of the fact, if such day were Sunday. The almanac has long been regarded and held as a part of the law of the land.^ And. an indorsee would, doubtless, be chargeable with notice from the face of the paper, if the day of the date it bears was Sunday. Clearly, however, an indorsee who takes a bill or note dated as of a secular day, and without notice from its face or otherwise, that it was executed on Sunday could recover upon it.^ And if the instrument were without date, there Vinton v. Peck, 15 Micb. 287 ; Drake v. Rogers, 32 Me. 534 ; Fritscli v. Heesless, 40 Mo. 556; Lovejoy v. Whipple, 18 Vt. 379; State Capitol Bank v. Tlioinp3on, 42 N. H. 370 ; Dohmey v. Dohmey, 7 Bush (Ky.) 217 ; King v. Fleming, 72 111. 21 ; Love v. Wells, 25 Ind. 503 (a deed). ' Marshall v. Russell, 44 N. H. 509. " Sayre v. Wheeler, 31 la. 112. 'King V. Fleming, 73 111. 21 ; Commonwealth v. Kendig, 2 Penn. St. 448; Clough Y. Davis, 9 N. H. 500; Lovejoy v. Whipple, 18 Vt. 379; Hilton v. Houghton, 35 Me. 143; Winchell v. Carey, 115 Mass. 560. " Benson v. Drake, 55 Me. 555 ; but see State Capitol Bank v. Thompson, 43 N. H. 370. * Finney v. Callendar, 8 Minn. 41. • Brieber v. Commercial Bank, 31 Ark. 138; Cranson v. Goss, 107 Mass. 439; Greathead v. Walton, 40 Conn. 81; Pope v. Linn, 50 Me. 84; State Capitol Bank V. Thompson, 43 N. H. 370. DELIVERY. 63 would be nothing about it to intimate notice, or charge the indorsee with its illegality because made on Sunday.^ § 71. The execution of a note does not import a debt existing previous to the period of its execution ; but its effect is to give the debt and the note a cotemporaneous origin.^ Proof of the giving of a promissory note by one person to another, nothing else appearing, is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of the note was indebted to the payee upon such settlement to the amount of such note.® But this is a mere presumption, which may be repelled by proofs of the consideration of such note, and of the occasion for, and circumstances attend- ing the giving of the same.* ' State Capitol Bank v. Thompson, 43 N. H. 370. " Johnston v. Lane's Trustees, 11 Grat. 553. = Lake v. Tysen, 6 N. Y.-461; De Freest t. Bloomingdale, 5 Denio, 304; Dutcher v. Porter, 63 Barb. 20 ; Sherman y. Mclntyre, 14 N. T. S. C. (7 Hun), 693. * Sherman v. Mclntyre, 14 N.T. S. C. (7 Hun), 592. CHAPTER III. FORMAL KEQUISITES OF BILLS AND NOTES. SECTION I. FOEMAIiITT m EESPECT TO STYLE AND MATERIAL. § 72. Ha-^ing sufficiently treated of tlie elements essential to the contract in order to impart to it the character of nego- tiability, we now come to speak of the formal preparation and delivery of the instrument. § is. As to the peculiar forms of hills and notes. — It does not appear necessary that they should be framed in any par- ticular form, provided they possess the essential qualities which have been mentioned. We give the forms which are usually in vogue amongst merchants, and it would be unwise to depart from them.^ But the law respects sulDstance more than form ; and where the intention appears to have assumed the obligations which devolve upon drawers and makers of negotiable instruments, it will be enforced, although not evi- denced in the usual commercial form. Thus, an order written under a note, " Please pay the above note, and hold it against me in our settlement," signed by the drawer and accepted by the drawee, has been held a good bill ; * and so, also, has been held a like order written under an account.^ And where an indorsement was made on a bond, ordering the contents to ' Chitty on Bills [*138], 148 ; see Appendix A. " Leonard v. Mason, 1 Wend. 253. = Hoyt v. Lynch, 3 Sandf. 338. FORMALITY IN RESPECT TO STYLE AND MATERIAL. 65 be paid to order for value received, it was held a good bill.^ And an instrument of the following tenor : " Nobleboro, October 4tli, 1869. Nathaniel O. Winslow, Or. By labor, 16|- days, a $4 per day, $67. Grood to bearer. (Signed,) Wm. Vannah," has been decided to be a negotiable promis- sory note, payable to Winslow on demand.^ But the words under an itemized account : " A. B., please pay the above bill," if naming no payee, would not be a bill." § 74. It does not matter upon what portion of the instru- ment the maker or drawer affixes his name, so that he signed as drawer or maker.* In a late case, where the maker of a note, which was in printed form, by mistake signed his name above the printed line which stated the bank at which it was payable, it was held that the printed line below the signature was nevertheless part of the note, especially where it had interest coupons attached, and was indorsed in that form ; these circumstances precluding all doubt of the fact that the designation of the place of payment was on the note at the time it was executed.^ " I, A. B., promise to pay," is as good a note, if written by A. B. or his authorized agent, as " I promise to pay," subscribed " A. B." ^ And so " I, A. B., request you to pay " would be a good bill, though not under- signed.'' Nor is it at all material whether the writing is in pencil or ink,® though, as a matter of permanence and security, ink is, of course, preferable. And the name may be printed as well as written, though, in such cases, it cannot prove it- self, and must be shown to have been adopted and used by " Bay V. Freazer, 1 Bay, 66. But see Norris v. Solomon, 3 M. & Rob. 117. ' Hussey T. Winslow, 59 Me. ' Platzer v. Norris, 38 Tex. 887. * Hunt V. Adams, 5 Mass. 359 ; Olason v. Bailey, 14 Johns. 484 ; Schmidt v. Schmaelter, 45 Mo. 503. * TurnbuU y. Thomas, 1 Hughes, 172. ' Taylor T. Dobbins, 1 Strange, 399. ' Saunderson v. Jackson, 2 Bos. & P. 338 ; Chitty, Jr. on Bills, 10. » Brown v. Butchers' Bank, 6 Hill, 443 ; Reed v. Roark, 14 Tex. 329 ; Closson V. Stearns, 4 Vt. 11; Geary v. Physic, 5 Barn. & C. 334; Chitty on Bills [*126], 147. A deed in pencil has been deemed sufficient. McDowell v. Chambers, 1 Strob. Eq. 347. Vol. I.— 5 66 FORMAL EEQUISITES OF BILLS AND NOTES. the party as his signature.^ The full name may be written ; and at least the surname should appear, and generally does. But this is not indispensable — the initials are sufficient. " and any mark which the party uses to indicate his intention to bind himself will be as effectual as his signature, whether there be a certificate of witnesses on the instrument or not.' But, of course, a mark does not prove itself like a signature, although it is an adminicle of proof* Any peculiarity in it may be shown as evidence of its genuineness ; ^ but, unless there be an attesting witness, or one who saw it written, or is familiar with its characteristics, the plaintiff cannot recover.^ § 75. The name is not necessary if it be sufficiently indi- cated who the party is. A note signed "Steamboat Ben Lee and owners, " '' has been held sufficient ; and likewise a bill drawn on " Steamer C. W. D. and owners," and accepted " Steamer C. W. D., by A. B., agent." ^ § 7G. Manifest informal/ties. — A manifest informality of expression or grammatical error, whether in respect to date, amount, time, place, or other matter, will in nowise affect the validity of a bill or note. Thus, it has been held that a note in form negotiable, but running " sixty days after date, I promised to pay," instead of " I promise," was as good as if ' Schneider v. Norris, 3 Maule & S. 386 ; Brown v. Butchers' Bank, 6 Hill, 443; Pennington v. Baehr (Sup. Ct. Cal.), Cent. L. J. vol. 2, No. 6, Feb. 5, ISTS; Story on Bills, § 58. ' Merchants' Bank v. Spioer, 6 "Wend. 443; Palmer v, Stephens, 1 Denio, 471; 1 Parsons N. & B. 36. = Willoughby v. Moulton, 47 N. H. 205 (unwitnessed) ; Shank v. Butsch, 28 Ind. 19 (unwitnessed); Flint v. Flint, 6 Allen, 34; Hilborn v. Alford, 23 Cal. 482; George v. Surrey, 1 Moody & M. 516, where the indorsement was "Ann Moore X her mark." Brown v. Butchers' Bank, 6 Hill, 443, where the figures " 1, 2, 8 ■' were held sufficient. * Hilborn T. Alford, 22 Cal. 483; Flowers v. Billing, 45 Ala. 488; see cases supra, and Story on Bills, § 53, note 6. " George t. Surrey, 1 Moody & M. 516; Thomson on Bills, 33; 3 Parsons N. & B. 480. ° See Thomson on Bills, 30, 31, 33. ' Sanders v. Anderson, 31 Mo. 403. " Alabama C. v. Brainard, 35 Ala. 478. FORMALITY IN RESPECT TO STYLE AND MATERIAL. 67 the promise in the past tense had been expressed in the present.^ So the singular " pound " clearly means, " pounds." ** A note payable " twenty-foiir after date," ' and one paya- ' ble " six after date," * have been held not void for uncer- tainty, but parol evidence has been admitted to ascertain the intention of the parties ; and a note payable " four months after," has been held payable " four months after date." ^ " With ten per cent, after due," ® or " at ten per cent., value received," "^ clearly means with ten per cent. " interest," althousrh the word "interest" be omitted. "Where a note is dated in December, and made payable on " the 25th of December next," it is admissible to show that December instant was intended.^ And where a bill was drawn " payable on the 6-9 Jan.," the evidence of bankers and brokers was held admissible to show that the figures were designed to designate the days of grace.' The words " are to be paid," if obviously necessary to make sense, may be understood as implied, and considered as inserted.^" § '77. As to the material upon which negotiable instru- ments should be written, it does not appear to be necessary that the substance should be paper. It is conceived that they might be written on parchment, cloth, leather, or any other convenient substitute for paper." Whether a valid bill or note may be written upon metal, stone, or wood, does not seem to have been decided ; but, if it were distinctly proven that the instrument was intended as a bill or note, the sub- ' Perkins' Case, 7 Grat. 651 ; Commonwealth v. Parmenter, 5 Pick. 379. ' Rex V. Post, Russ. & Ry. 101. ' Conner v. Routh, 7 How. (Miss.) 176. < Nichols V. Frothingham, 45 Me. 220. ' Pearson v. Stoddard, 9 Gray, 199. " Higley v. Newell, 38 Iowa, 516. ' Williams t. Baker, 67 111. 338; Thompson v. Hoagland, 65 111. 310 ; Cramer V. Joder, 65 111. 314. ' McOrary v. Caskey, 27 Ga. 54. ' Kelsey v. Hibbs, 13 Ohio, N. S. 340. '° Peyton v. Harman, 22 Grat. 643. " Byles on Bills (Sharswood's ed.) 165. A deed must be written upon parch- ment or paper. Coke, Littleton, 229. G8 FOBMAL REQUISITES OF BILLS AKB KOTES. stance cotild be no objection to its validity. But it is, of course, entirely out of the usual course of business ; and it must rarely, if ever, occur that such a question is presented. Certainly the courts would look with suspicion upon so pe- culiar an instrument ; and its unusual form would in itself be a warning to all purchasers that they took it at their peril.^ A metallic token, like an I. O. U., would seem at common law to be only evidence of a debt,^ § 78. Individuals, bankers and others have frequently, in the United States, issued their promissory notes in printed forms closely resembling, in size, color, and texture of the paper, and in mode of execution, bank notes. They are in- tended to circulate as money, and very often constitute a currency in themselves, when no national or State law pro- hibits them. They are valid obligations when not so pro- hibited, and are enforced by the courts as the promissory notes of the parties executing them.^ § 79. The whole of the bill or note must be expressed in writing. But the whole of it need not be in the body of the instrument ; and a coteraporaneous memorandum or indorse- ment on any pai't of it may qualify its terms by making it payable upon a contingency,* or at a particular place,^ or pro- viding that it may be renewed.^ And there may be a written stipulation on a detached paper affecting the instrument, which would be admissible as between the original parties and their representatives ; '^ but such stipulation would not affect a bona fide holder for value, who acquired it without notice.® But any party having notice would stand on no ' 1 Parsons N. & B. 23. ^ Byles on Bills (Sharswood's ed.) 381. = James t, Rogers, 23 Ind. 453 (1865). " Bcele V. Bidgood, 1 Man. & Ry. 143; 7 B. & C. 453; Hartley v. Wilkinson, 4 M. & S. 25 ; Heywood v. Perrin, 10 Pick. 238 ; Shaw v. M, E. Society, 8 Mete. 226; Cliitty on Bills [*126], 146; VSTheelock v. Freeman, 13 Pick. 168; Byles (Rharswood's ed.) [*94] 193; Leeds 7. Lancashire, 3 Camp. 205. ' Ibid. " Hartley v, Wilkinson, 4 M. & S. 35. ' Bowerbank v. Monteiro, 4 Taunt. 844. ° Hoare v. Graham, 3 Camp. 57. FORMALITY IN RESPECT TO STYLE AND MATERIAL. G9 better footing than the original parties.^ Whether the in- strument be a bill of exchange or promissory note, or other- wise, and whether or not it be negotiable, must be determined by its face, without reference to any other source.^ § 80. Pwrol evidence. — It is a general principle of law that parol evidence is inadmissible to vary or contradict a written contract. Therefore, if a bill or note be absolute upon its face, no evidence of a verbal agreement made at the same time qualifying its terms, can be admitted. Thus where a note is payable on demand, it cannot be shown by verbal testimony that it was agreed that it should not be paid till after the decease of the testator ; * nor until after sale of the maker's estates;* nor until a certain account should be adjusted and credited on its face ; ** nor until cer- tain premises were delivered up ; ^ nor until a dividend of a bankrupt's assets should have been made;'' nor until the amount was collected from certain sources ; ® nor until a cer- tain draft was received.^ Nor can it be shown verbally that demand of a post-dated check was not to be made at ma- turity ; " nor that a note in which no time for payment is expressed, and is therefore constructively payable on de- mand, was to be paid at a specified time.-^ Nor can it be shown that there was any agreement to prolong or vary the time of payment specified in the instrument, by taking part payment and waiting for the residue, by receiving payment in instalments, or otherwise than the instrument itself declares ; ^^ nor that it was not to be negotiated but re- ' Gibbon v. Scott, 2 Stark. 386. " Strachan v. Muxton, 24 Wis. 21. = Woodbridge v. Spooner, 3 B. & Aid. 233; Graves v. Clark, 6 Blaokf. 183. * Free v. Hawkins, 8 Taunt. 93 ; IJ. B. Moore, 535. ' Mahan «. Sherman, 7 Blackf. 378. ° Moseley v. Hanford, 10 B. & C. 739. ' Rawson t. Walker, 1 Stark. 361. ° Campbell v. Upshaw, 7 Humph. 185; MoClanaghan v. Hinea, 2 Strob. 132; Litchfield v. Falconer, 3 Ala. 280. = Kincaid v. Higgins, 1 Bibb, 896. " Hill v. Gaw, 4 Barr, 493. " Thompson v. Ketehum, 8 Johns. 189. " Eaton V. Emerson, 14 Me. 335 ; Barton v. Wilkins, 1 Mo. 74 ; Dawson v. Bank of Illinois, 4 Scam. 56 ; Walker v. Clay, 21 Ala. 797 ; Blakemore t. Wood, 70 FORMAL REQUISITES OF BILLS AND NOTES. newed.^ Nor that it was not to be paid in case a certain verdict was obtained ; ^ nor that it was merely given as an indemnity against certain claims;^ nor merely as a receipt/ On this subject the United States Supreme Court has re- cently said : " Negotiable notes are written instruments, and as such they cannot be contradicted, nor can their terms be varied by parol evidence ; and that proposition is universally true where the promissory note is in the hands of an inno- cent holder. Where a bill of exchange was drawn in the usual form, and was protested for non-payment, the court held twenty years ago that parol evidence of an understand- ing between the drawer and the party in whose favor the bill was drawn was inadmissible to vary the terms of the , instrument." ' § 81. The principle applies to every element of the in- strument. It cannot be shown by parol that the sum agreed to be paid was different ; * nor that an additional sum was to be paid in a certain contingency ; '^ nor that a certain account was to be deducted fi'om the note,^ or the value of certain articles credited upon it;' nor that a note payable in " law- ful money" was to be paid in silver;" nor when expressed to be payable in dollars, that it was payable in bank notes, corporation, or individual notes, or in any paper currency," or in goods or other articles." ^^ 3 Sneed, 470; Rice v. Ragland, 10 Humph. 545; Sturdivant v. Hull, 59 Me. 173; Roache v. Roanoke Classical Seminary, 56 Ind. 202. ' Heist V. Hart, 73 Penn. St. 286. = Foster v. Jolly, 1 Cramp. M. & R. 703. ' Ridout V. Bristow, 1 Cromp. & J. 231. " Billings v. Billings, 10 Gush. 178. ' Brown v. Spofford, 95 U. S. (5 Otto) 480 (1877) ; see Brown v. Wiley, 20 How. 442; Specht v. Howard, 16 Wall. 564; Forsyth v. Kimball, 91 U.S. (1 Otto) 291. . ' Beard v. White, 1 Ala. 436 ; 5 Porter, Ala. 94 ; Carter v. Hamilton, 11 Barb. 147; Downs v. Webster, Brayt. 79. ' Gazoway v. Moore, Harper, 401. " Eayes v. Henderson, 17 Wend. 190. " Featherston v. Wilson, 4 Ark. 154; St. Louis, &c. Ins. Co. v. Homer, 9 Mete. 39. » Alsop v. Goodwin, 1 Root, 196. " Noe V. Hodges, 3 Humph. 162; Cole v. Handley, 8 Smedes & M. 473; Pack v. Thomas, 13 Smedes & M. 11 ; Baugh v. Ramsey, 4 T. B. Monroe, 155 ; M'Minn V. Owen, 2 Dallas, 173 ; Hair v. La Bronse, 10 Ala. 548 ; Langenberger v. Kraeger, 48 Cal. 147; Clark v. Hart, 49 Ala. 86. " Bradley v. Anderson, 5 Vt. 152; Coe v. Wallace, 5 Blackf. 199. FORMALITY IN RESPECT TO STYLE ANB MATERLAL. 7.1 In Missouri, it has been held that if payable in the " cur- rency of the State," it cannot be shown that anything was in- tended but gold and silver, or notes of the bank of Missouri.^ Nor can any condition be engrafted in the instrument by verbal testimony — as that it should be void unless others interested agreed to the settlement in which it was given ; * or was to be void if certain bills should be paid at maturity ; ^ or was to be void or surrendered up in the event the case in which it was given for a fee were compromised,* or in any other contingency.^ Nor can it be shown that it was only to be paid out of a particular fund or estate.' But a deliv- ery to the payee to take effect only upon a condition prece- dent, it has been held, might be shown as between the origi- nal parties.'' Evidence of want of consideration is admissible between original parties. "Every bill or note imports two things, value received, and an agreement to pay the amount on cer- tain specified terms. Evidence is admissible to deny the receipt of value, but not to vary the engagement."^ The cases amply sustain the foregoing views, which seem to us altogether correct. It has been held that it is competent to show by parol that at the time a note was made, it was agreed that it should be held for nothing on the happening of a certain event.' But unless such event operated a failure ' Cockrill V. Kirkpatrick, 9 Mo. 688. ' Ely v. Kilborn, 5 Denio, 514. ' Penny v. Grayes, 13 111. 187. * Dale y. Pope, 4 Littell, 166. ' Brown v. Hull, 1 Denio, 400; Holt t. Moore, 5 Ala. 531 ; Adams v. Wil- son,- 13 Mete. 138; Spring v. Lovett, 11 Pick. 417; Haverin v. Donnell, 7 Smedes & M. 344; Underwood v. Simonds, 13 Mete. 375; Rose v. Learned, 14 Mass. 154; Brown v. Langley, 5 Scott N. R. 249; Sears v. Wright, 24 Me. 278; Dale V. Pope, 4 Littell 1613; Tower v. Richardson, 6 Allen, 351; Anderson v. Magruder, 10 Cal. 419; Calhoun v. Davis, 3 Ind. 532 ; Goddard v. Cutts, 11 Me. 440; Miller v. White, 7 Blaekf. 491; Burge r. Dishtaan, 5 Ind. 273; Potter v. Earnest, 45 Ind. 418, Osborn, J.: "A yerbal condition cannot be annexed to a promissory note." ° Adams v. Wilson, 12 Mete. 138; Currier v. Hale, 8 Allen, 47; Campbell v. Hodgson, Gow, 74 ; Rawson v. Walker, 1 Stark. 361 ; Brown t. Spofford, 95 U. S. (5 Otto) 483 (1877). ' Benton v. Martin, 53 N. Y. 574 ; see ante, § 68. ' Abbott V. Hendricks, 1 M. & G. 795 (39 E. C. L. R.) See Small v. Clewley, 6? Me. 155. ' Bissinger v. Guiteman, 6 Heisk. 277. rz FOEMAI; REQUISITES OF BILLS AND NOTES. of consideration, we cannot perceive upon what principle such a view could be taken. Cotemporaneous roritten agreements may be proven to control the effect of negotiable or other instruments as be- tween immediate parties, and those having notice; ^ and a pur- chaser, after maturity, of a negotiable instrument, would be bound by such agreement when proven.^ SECTION II. THE FOEMAi ELEMENTS AND PHEASES OF BILLS AND NOTES. § 82. We have now to consider : 1st, The date ; 2d, the amount ; 3d, the time of payment ; 4th, the place of pay- ment ; 5th, name of the drawer or maker; 6th, name of the drawee (if it be a bill) ; 7th, name of the payee ; 8th, the terms of negotiability ; 9th, the words of consideration ; 10th, the words of advice ; and 11th, the attestation. § 83. In the first place, as to the date, this is usually written in the right hand corner of the instrument ; but no date is essential to the validity of a bill or note ; ^ and it is of no consequence on what portion of the paper it is written.* If there be no date, it will be considered as dated at the time it was made,^ and parol evidence is admissible to show from what time an undated instrument was intended to operate,^ or to show that there was a mistake in the date.' When a note without date is made for another's accommodation, the ' Goodwin v. Nickerson, 51 Oal. 166. " Mimro v. King, 3 Colorado, 238. ^ Michigan Ins. Co. v. Leavenworth, 30 Vt. 11 ; Mechanics' &c. Bank v. Schuy- ler, 7 Cowen, 337 ; Byles [*74], 166 ; Edwards, 150 ; Bayley, 31 ; Story on Bills, § 37. ■" Shepherd v. Graves, 14 Howard, 505. " Giles V. Bourne, 6 Maule & S. 73 ; De la Courtier v. Bellamy, 3 Show. 423 ; Seldenridge v. Connable, 33 Ind. 375. • Davis V. Jones, 35 L. J. C. P. 91; 17 C. B. 635 (84 E. C. L. R.); Richard- son V. El let, 10 Texas, 190; Lean v. Lozardi, 37 Mich. 434; Thomson on Bills, 37. ' Drake v. Rogers, 82 Me. 524. i-OEMAL ELEMEIfTS Oli' BILLS AND NOTES. 73 maker authorizes Wm to fill up the date as he sees fit.^ An indorsee has been allowed to prove against the maker a mis- take in the date of a note, though by such proof the maker was cut off from a defense valid as to the payee.^ But a maker would not be admitted to prove a different date as against an indorsee for value, who relied on its apparent date.^ A mistaken date may be rectified in equity.* § 84. When the paper is payable at a specified time after date, it is almost indispensable that the date should appear on its face, for otherwise, if it be a bill, the drawee cannot tell when it falls due, nor can an indorsee tell whether it be a bill or note. Nor can the holder know when to present it for payment, nor when it will be considered overdue. When the bill or note is payable at sight, or on demand, or on a certain day, the date is not so material ; but to avoid diffi- culty, it should never be omitted.^ And it has been ques- tioned whether or not the drawee might not reasonably re- fuse to accept or pay an undated bill, on account of embarrass- ments, in respect to remedy and evidence, to which he might be suVgected.* § 85. Bills, checks and notes are sometimes post-dated or ante-dated for purposes of convenience ; ' and the fact that they are negotiated prior to the day of date, is not a suspi- cious circumstance against which parties must guard.^ The indorsee of a bill which was post-dated, and indorsed by the payee who died the day before the day of date, was held in an English case to have derived title through the indorser, and entitled to recover against the drawer,^ and this case has been followed in the United States.^" So if a note bear date ' Androscoggin Bank v. Kimball, 10 Cush. 373. ' Drake v. Rogers, 33 Me. 524; Germania Bank of Distler, 11 N. Y. S. C. (4 Hun). 633. ' Huston V. Young, 33 Me. 85. ' Paysant v. Ware, 1 Ala. 160. ' Story on Notes, § 48. ' Story on Bills, § 37. ' Gray v. Wood, 3 Har. & J. 338; Richter v. Selin, 8 Serg. & R. 425. ' Brewster v. McCardel, 8 Wend. 478; Edwards on Bills, 151. ' Pasmore v. North, 13 East. 517; " Brewster t. McCardel, 8 Wend. 478. 74 POEMAL REQUISITES OF BILLS AND NOTES. as of a time before the maker became of age, or as of a time when the maker was disqualified by being a feme covert, it may be shown in answer to the plea of infancy or coverture, that the period of its actual date or delivery was when no such incapacity or disqualification existed.^ And if the bill or note be ante-dated or post-dated, as of a time when it would be valid, it may be shown that it was dated or delivered at a time when the party had no capacity to en- ter into the contract, or that it came within the interdiction of a statute.^ And whenever there is a false date to evade the law, the instrument is void as to all parties having no- tice.^ If the date does not correspond with the declaration, the discrepancy must be explained.* But where it is alleged that a note was made on a certain day (and not that -it bore date on that day) it is not a fatal variance that it bears date on another day.® § 86. Secondly, as to the amount or sum payble. —Th\s is usually specified in figures in the upper, or lower, left hand corner of the instrument, as well as in writing in the body of it. Where a difi'erence appears between the words and figures, evidence cannot be received to explain it; but the words in the body of the paper must control; ^ and if there is a difference between printed and written words, the writ- ' Pasmore v. North, 13 East, 517; Story on Notes, § 48. " Bailey v. Taber, Mass. 286. • Serle v. Norton, 9 M. & W. 309; Bylea on Bills [*75], 168; Edwards, 151. * Pitch V. Jones, 6 Ellis & B. 338; Fanshawe v.Peet, 2 H. & N. 1. ' Coxon V. Lyon, 3 Camp. 307 ; Smith v. Lord, 3 Dow. & L. 759. "Payne v. Clark, 19 Mo. 152; Riley v. Dickens, 19 111. 30; Mears v. Gra- ham, 8 Blackf. 144; Saunderson v. Piper, 5 Bing. N. C. 425. In Smith v. Smith, 1 R. I. 398, it appeared a bill bore the marginal figures " $175 94," and on its face called for the payment of " three hundred and seventy-five -jY^r " expressed as indicated. The clerk of the bank, where it was left for discount, observing the diflference between the marginal figures and the words in the body, changed the marginal figure 1 to a 3, thereby conforming them. The Court said: " We do not think the marginal notation constitutes any part of the bill. It is simply a memmorandum or abridgment of the contents of the bill for the convenience of reference. The contract is perfect without it. If this is so, any alteration in the figures cannot avoid the contract, because it is no alteration, either material or immaterial, in the contract." Chitty on Bills [*150], 173; Thomson, 40. POKMAL ELEMENTS OE BIIjTjS AND NOTES. 75 ten must control.^ If the words are so obscurely written or printed as to be indistinct, the figures in the margin may be referred to to explain them.^ If by inadvertence the amount is expressed in figures only, it will suffice.^ It has been held in the United States, that where the figures were in the mar- gin of the paper, and the amount was left blank in the body of it, it was fatally defective.* But in England, where the body contained the word " Fifty ," and was blank as to the denomination of money intended, and in the margin " £ fifty " was written, it was held, and that too in a crim- inal case, that "Fifty " clearly meant "fifty pounds."^ If it had really been the intention of the parties to the paper that the words should be written so as to conform to the figures, it seems clear that there was implied authority to the holder to fill the blank accordingly.^ Where the word " dollars " is left out, or the dollar mark is omitted, they will, nevertheless, be supplied in this country,''' where, under the like circumstances, " pounds " would be supplied in England.^ Where " three hundred dollars " was expressed • 1 Parsons N. & B. 28. ' Riley v. Dickens, 19 111. 29; Corgan v. Frew, 39 111. 31; Chitty on Bills [*149], 172. ' Sweetzer v. French, 13 Mete. 262; Petty v. Fleispel, 31 Tex. 169. Corgan V. Frew, 39 111. 31, where there was in the margin " $500," and in the body "five hundred," and it was held to mean " dollars." In Louisiana it is provided by the Revised Statutes of 1870. as follows: Sec. 319. No bill of exchange, promissory note, or other obligation for the payment of money, made within this State, shall be received as evidence of a debt, when the whole sum shall be expressed in figures, unless the same shall be accompanied by proof that it was given for the sum therein expressed. The cents or fractional parts of a dollar may be in figures.'' * Norwich Bank v. Hyde, 13 Conn. 379 ; but see Corgan v. Frew, supra. ' Rex V. Elliott, 2 East P. C. 951 ; 1 Leach C. L. 175. ' Bank of Commonwealth v. Curiy, 3 Dana, 143 ; Bank of Limestone v. Penick, 5 Monroe, 35 ; Norwich Bank v. Hyde, 13 Conn. 279. ' Corgan v. Frew, 39 HI. 31; Williamson v. Smith, 1 Cold. 1 ; McCoy v. Gil- more, 7 Ohio, 368; Murrill v. Handy, 17 Mo. 406; Coolbroth v. Purinton, 39 Me. 469; Sweetzer v. French, 13 Mete. 362; Northrop v. Sanborn, 33 Vt. 433; Booth V. Wallace, 2 Root, 247; Harman v. Howe, 37 Grat. 677. ' Rex V. Elliott, 1 Leach C. L. 175 ; 3 East P. C. 951 ; Phipps v. Tanner, 5 C. & P. 488. 76 FOKMAL REQUISITES OF BILLS AND NOTES. in a note, it was left to a jury to say whether or not " three, &c.," was intended/ and a note for " the sum of fifty-two, 25-100," was held to denote, beyond question, that the frac- tion meant was " dollars." ^ So where the note was for " one hundred and ninety-one, fifty cents," the word dollars was supplied.^ The marginal figures are really not a part of the instrument, but a mere memorandum of the amount.* § 87. The term dollars. — ^When the term " dollars " is used in any security for money given in any of the United States, it is understood to mean dollars " of the lawful money of the United States ;" and extraneous evidence will not be permitted as a general rule to give it a difi'erent signification.^ But under peculiar circumstances, such as arose during the ex- istence of the Confederate States, when the term " dollars " was applied to Confederate currency in all circles, parol or other evidence will be permitted to explain the true meaning and intent with which it was employed.^ Thus, in a case before the United States Supreme Court, involving the legal effect of a note for $10,000, dated Montgomery, Ala. (which was in the Confederate States during the war), November 28th, 1864, Chief Justice Chase, delivering the opinion of the court, said : " It is quite clear that a contract to pay dollars, made between citizens of any State of the Union, while maintaining its constitutional relations -with the na- tional government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol ■ Burnham v. Allen, 1 Gray, 496. = Murrill v. Handy, 17 Mo. 406. = Beardsley v. Hill, 61 111. 354. * Commonwealth v. Emigrant Ina. Co. 98 Mass. 12; Smith v. Smith, IR. I. 398. See ante, § 86, and notes. " Bank v. Supervisors, 7 Wall. 26; Thorington v. Smith, 8 Wall. 12; Omo- hundro v. Crump, 18 Grat. 705; Lohman v. Crouch, 19 Grat. 331; Smith v. Walker, 1 Call, 34; Commonwealth v. Beaumarchais, 3 Call, 107; Wilcoxen v. Reynolds, 46 Ala. 529; Hightower v. Maull, 50 Ala. 495; Stewart v. Salamon, 94 U. S. (4 Otto), 431. ' Lohman v. Crouch, 19 Grat. 331; Thorington v. Smith, 8 Wall. 12; Donley T. Tindall, 32 Tex. 43 ; Stewart v. Salamon, 94 U. S. (4 Otto), 434 ; Confederate Note Case 19 Wall. 548 ; Wilmington, &c. R. R. •?. King, 91 U. S. (1 Otto), 3. FORMAL ELEMENTS OP BILLS AND NOTES. 77 evidence. But it is equally clear, if in any other country coins or notes denominated dollars should be authorized, of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars made in that country, evidence would be admitted to prove what kind of dollars were intended, and if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence does not modify or alter the contract. It simply explains an ambiguity which, under the general rules of evidence, may be removed by parol evidence." ^ But the same tribunal has held that in the absense of parol testimony it would be pre- sumed that a note payable in one of the Confederate States, during the war, in " dollars," was presumptively payable in lawful money of the United States.^ In such cases the Su- preme Court of the U. S. holds that the sum payable in ac- tual money must be ascertained by the value in coin, or legal currency of the United States, at the time when and place where the note was made, of the Confederate note, equal in nominal amount to the number of dollars specified.' § 88. Thirdly^ as to the time of payment. — Bills and notes are usually drawn payable at a specified time after date, or after sight, or at sight.* Sometimes they are made payable on demand, or no time is specified, in which case on demand is understood.^ A note promising to pay when the maker can make it convenient, has been held payable within a rea- sonable time;^ and it seems that notes payable within a reasonable time are generally regarded as negotiable in the ' Thorington v. Smitli, 8 Wall. 13. = The Confederate Note Case, 19 Wall. 548. = Stewart v. Salamon, 94 U. S. (4 Otto), 434, (1876). * Story on Bills, § 50. ' Thompson v. Ketchum, 8 Johns. 189 ; Green v. Drebillis, 1 Iowa, 552 ; Stover V. Hamilton, 21 Grat. 373; Bowman v. McChesney, 23 Grat. 609; Whit- lock V. Underwood, 2 B. & C. 157; Story on Bills, §50; Chitty [*151], 174; and interest runs from date, Collier v. Gray, 1 Tenn. 110; see ante, §§ 40, 44. » Lewis Y. Tipton, 10 Ohio, N. S. 88. 78 POBMAL REQUISITES OF BILLS AST) NOTES. United States, the law fixing a definite limit to the period to be allowed.^ When the word month is used in specifying the time of payment, a calendar month is understood; and the word year signifies a calendar year.^ In England, foreign bills are frequently drawn payable at usance or usances ; and by usance is meant the common period fixed l)y customary dealing between the country of the drawer and the country of the place of payment for the payment of bills.' § 89. A note payable " when demanded," * or " on call," or " when called for," ^ is not distinguishable from one pay- able on demand. If payable with interest " twelve months after notice," the amount is due whenever demanded after notice has been given and twelve months have expired ; ^ and where the expression used is " on demand with interest after four months," it is due when four months have expired.' But, in such a case, it has been held that demand might be made immediately, but that interest would not begin until after the time specified.^ § 90. Fourthly. — The place of payment need not be specified in the bill or note, but very often is. If the drawer designate in the bill a place of payment, he will be dis- charged, unless it be there presented at maturity, as will also an indorser ; ' but as to the maker of a note or acceptor of a bill payable at a particular place, unless the restrictive words "only and not elsewhere" be added, no presentment there at maturity or afterwards is necessary to charge him." Where no place of payment is expressed in a note, the place ' Bowman v. McCliesney, supra. ° See Ch. XX on Presentment for Payment. ' Story on Bills, § 50. ' Bowman v. McChesney, 32 Grat. 609; Kingsbury v. Butler, 4 Vt. 458. " Bowman v. McChesney, 22 Grat. 609. • Clayton t. Gosling, 5 B. & C. 360. ' Hobarts v. Dodge, 1 Fairf. 156. ' Loring v. Gurney, 5 Pick. 15. ' See Chapter XX on Presentment for Payment. " See Chapter XX on Presentment for Payment. FOEMAIi ELEMENTS OP BILLS AND NOTES. 79 of payment is understood to be where the maker resides;* and if none be expressed in a bill, where the drawee resides is understood.** Circumstances, however, may control this inference. Thus, if a bill were drawn upon a merchant abroad ad- dressed to him " at Paris or at London," the place of pay- ment would be deemed the place where he accepted it, whether Paris or London.^ If the drawer direct on the face of the bill that it be paid at his own house, it creates a presumption that it is an accommodation bill ; and that he was to pay it ; and unless he rebut it by showing that he really had effects in the drawee's hands, notice of dishonor will be dispensed with.* The execution of a note, on its face payable at a bank, the place for the name of which is left blank, at a town named, authorizes the payee, before the maturity of the note, to insert the name of a particular bank at such, town in the blank space, so that, whatever limitation of authority may have been imposed by the maker on the payee, and although, by the law of the State, no note is negotiable unless payable at a specified bank, the note will be negotiable, and governed by the law merchant in the hands of a hona fide indorsee.® In some of the States of the United States the place of pay- ment is made by statute the criterion of negotiability.^ ' Story on Notes, § 49. ' ChittJ on Bills (13 Am. ed.), [*151], 174; Story on Bills, § 48. ' Freeae v. Brownell, 35 N. J. (Law), 285; Story on Bills, § 46. * Sharp V. Bailey, 9 B. & 0. 44. ' Gillaspio v. Kelly, 41 Ind. 158; "Spitler v. James, 33 Jnd. 303. See post, § 144. " Thus in Alabama it is provided by statute. Code of 18G7, § 1833, that " Bills of exchange and promissory notes payable in money at a bank or private banking house are governed by the commercial law, except so far as the same is changed by this Code." In Indiana, by the Eevised Statutes of 1852, c. 77, § 6, that " Notes payable to order, or bearer, in a bank in this State, shall be negotiable as inland bills of exchange, and the payees and indorsees thereof may recover as in case of such bills." It has been held in Georgia, that a note payable at " H. & J.," does not upon its face show that it was made for the purpose of negotiation at a chartered bank; and that the fact that suit thereon is brought against the indorsers by H. & J., and who are described in the pleadings as lately bankers doing business 80 FORMAL KEQUISITES OF BILLS AKD NOTES. Where it is necessary to negotiability that the note be pay- able at a bank in the State, and a note is made in the State payable at a bank, it will be presumed that the bank is in the State.i § 91. Fifthly^ as to the name of the dratoer or maJcer. — It is of the first importance, indeed indispensable, that the bill or note should point out with certainty the party who enters into the contract imported by its terms, and if the promise be in the alternative, it is not a good negotiable instrument. Thus, where the note ran, "I, A. B., promise to pay," and was signed " A. B. or else C. D.," the court said : " This is not a promissory note against this defendant, within under the name, style and firm of H. & J., is not sufiicient to prove that H. & J. is a chartered bank. Salmons v. Hoyt, 53 Ga. 493. In Virginia, the Code (see Code of 1878, c. 141, § 7) provides that "Every promissory note, or check for money, payable in this State (1) at a particular bank, or (2) at a particular office thereof for discount and deposit, or (3) at the place of business of a savings institution or savings bank, or (4) at the place of tmsiness of a licensed hrolcer ; and every inland bill of exchange payable in this State shall be deemed negotiable, and may, upon being dishonored for non- acceptance or non-payment, be protested, and the protest be in such case evi- dence of dishonor in like manner as in the case of a foreign bill of exchange."' The words italicised, "a< the place of htsinesa of a licensed bro'ker," were inter- polated by an amendment of the Code in 1866, at the instance of the Richmond brokers. Acts of Assembly, 1866, p. 400. T'he declaration that every inland bill of exchange payable in this State shall be deemed negotiable, is only confirmatory of the common law. If payable in another State, its negotiability is to be determined there. In the Freeman's Bank v. Ruckman, 16 Grat. 126, the note sned on was ex- ecuted in Boston, Mass., and was payable '' at either of the banking houses in Wheeling, Va." Judge Moncure said: " The note was not payable at a particu- lar bank, or at a particular office thereof, &c. (following the statute), but ' at either of the banking houses in Wheeling, Va.,' and thergfore is not a negotiable note." It is not necessary in Virginia that the note in order to be negotiable be expressly payable in that State: " It is certainly true that such note, &c., must on its face be payable in this State, because the section so requires. But it does not require that the State shall be expressly named in the note." McVeigh t. Bank of The Old Dominion, 26 Grat. 830. Moncure, P. See Woodward v. Gunn, Virginia L. J. April, 1878, p. 243. In this case it was held, that a note on which the place of payment, after the word at, in a printed note was left blank, but was intended to be filled with the name of a bank in Virginia, thus making the note negotiable, might under the peculiar circumstances which appeared to be treated as negotiable, although in fact the blank for the place of payment was never filled. ' McGuirk v. Cummings, 54 Ind. 246. See McVeigh v. Bank of Old Domin- ion, 26 Grat. 830, and supra. FOKMAL EliBMENTS OF BILLS AND NOTES. 81 the statute of Anne. It operates differently as to the two parties. It is the absolute undertaking on the part of Corner (A.) to pay, and it is conditional only on the part of the defendant (B.), who undertakes to pay only in the event of Corner's not paying." ^ But it has been said that such an instrument would be a good note as against A.* § 92. The name of the drawer is absolutely needful upon the face of the bill ; for without it the drawee cannot tell whether he should accept it or not, or any holder know to whom notice should be given. Indeed, it is paradoxical to speak of a bill without a drawer ; for the very term imports a negotiable order drawn by some one.® And even when such an instrument bears the name of one upon it who signs as acceptor, it is still nothing more than an inchoate paper, which cannot be sued upon unless a drawer's name is au- thoritatively inserted in it.* And it has been well said that it is " an abuse of terms to say that one was the acceptor of a bill which had never been drawn ; or, in other words, that he had accepted an ' order,' or ' request,' that had never been made upon him." ^ ' Ferris v. Bond, 4 Barn. & Aid. 679; Story on Notes, § 34; 1 Parsons N. & B. 36-7 ; Chitty [*140], 163. = Byles (Sharswood's ed.) [*92], 190; see Edwards on Bills, 134. This seems to be there implied by the author's language. ' Story on Bills, § 53. 'McCallT. Taylor, 19 C. B. N. S. 30; Tevis v. Young, 1 Mete. (Ky.) 199; May V. Miller, 37 Ala. 515; Byles (Sharswood's ed.) [*83], 178. ° Tevis V. Young, 1 Mete. (Ky.) 199. In this case the instrument sued on was in the form of a bill, but no name was signed as drawer. It was dated Shelby ville, and addressed "To W. G. Rogers, Shelbyville ; " accepted by Rogers, and indorsed " John Tevis." Suit was brought by Young against Tevis as indorser, and Rogers as acceptor ; but it was held that the instrument was incomplete, and the action could not be maintained. It was said by the court, per Duval, J. (Simpson, J., dissenting): "The fallacy of all the reasoning of counsel upon this point, consists in their failure to recognize the distinction between a bill of exchange and the mere form of such an instrument. The words written upon the face of the paper in question are utterly inoperative, and withput force or legal effect for any purpose as a commercial instrument, without the name of a drawer, either subscribed to the paper, or inserted in the body of it. Whether the name of the drawer, or of any subsequent party to the bill, be Vol. I.— 6 82 FORMAL REQUISITES OF BILLS AND NOTES. § 93. By executing a 2:)romissory note, the maker engages to pay the amount therein named to the bearer, if it be payable to bearer ; to the payee or order, if it be payable to a particular person or order. By the very act of engaging to pay to a particular payee he acknowledges his capacity to receive the money ; and also his capacity to order it to be paid to another. And therefore if the maker is sued by an indorsee of the payee, he cannot defend himself on the ground that the payee had no capacity to indorse it by reason of being an infant,^ a married woman,'' a bankrupt,^ a fictitious person,'' a corporation without legal existence,^ or that such payee was insane at the time the note was executed ; * though, if the payee became insane after the execution of the note, his indorsement would then be a mere nullify, and if the acceptor knew of such insanity he would not be justified in making payment to any one whose title was affected by it." ■forged or fictitious, makes no diiTerence as it respects the liability of the indorser. The indorsement implies an undertaking that tlie antecedent parties are compe- tent to draw and accept the bill, and that tlieir signatures are genuine. But the indorsement does not imply an undertaking that the paper indorsed contains the names of all the antecedent parties necessary to constitute a valid bill of ex- change, when the face of the paper itself shows that it is blank as to all or any of such names. The indorsement of the paper would, doubtless, confer upon ,the party intrusted with it, authority to fill up the blanks with the names of any ]3arties, at the discretion of the latter ; and so, the indorsement of a piece of blank paper would give the holder authority to make a bill of exchange, upon ^\hioh the indorser would be liable, in the hands of an innocent holder lor value, for whatever amount, or in the names of whatever parties the bill might be sub- sequently drawn and accepted. But certainly it cannot be supposed that in either of the cases stated, the indorser could be held liable, as such, until the paper should have been drawn and executed and completed as a bill of exchange. It is not the mere authority to make a bill, which of itself creates the liability, but it is the execution of that authority." ' Taylor v. Croker, 4 Esp. 187; .Jones v. Darch, 4 Price, 300; Grey v. Cooper, 3 Doug. G.T. ' Smith V. Marsack, 6 C. B. 486, Wilde, C. J. ' Drayton v. Dale, 3 Barn, & Cress. 393. ' Lane v. Krekle, 36 Wis. ' Ray V. Indianapolis Ins. Co. 39 Ind. 390; John v. Farmer's Bank, 3 Blaokf. 867 ; Vater v. Lewis, 36 Ind, 391 ; Snyder v. Studebaker, 19 Ind. 463 ; Greiner v. Ulery, 20 Iowa, 2u6. ' « See Smith v. Marsack, sm^m-«. ' See Bigelow on Estoppel, 4.50, .541; Alcock v. Alcock, 3 JIan. A. G.-268 (42 E. C. h. R.) The fact of lunacy came to defendant's knowledge pending the trial. FORMAL ELEMENTS OP BILLS AND NOTES. 83 There are authorities which hold that the insanity of the payee at the tinne the paper was executed may be shown ; ^ but they have been sharply criticised,^ and do not accord with the general principle of estoppel applied to negotiable paper. § 94. Joint (Mid several notes. — A note by two or more makers may be either joint, or joint and several. A note signed by more thfin one person, and beginning " we prom- ise," is joint only.^ A joint and several note usually expresses that the makers jointly and severally promise. But a note signed by more than one person, and beginning " I promise," is several as well as joint ; * and so also is one signed by two makers, and running " we or either of us promise to pay." ^ If a note be signed by a person in the name of a firm, whether that name represents in form more than one person, as " A. & Co.," or only one person, as " A.," it is in both cases the joint note of the firm, and all the partners will be bound, whether the language be " I," or " We " promise." If the note runs " We promise," and is signed "A. B., principal ; C. D., surety," it is still the joint note of both; and if it were written " I promise," and signed in the same manner, it would be the joint and several note of both.'' A joint and several note, though on one piece of paper, comprises in reality and in legal effect, several notes.^ Thus if A., B. & C. make a joint and several note, there is the several note of each, and ' Peaslee v. Bobbins, 3 Mete. (Mass.) 164. " Bigelow on Estoppel, 450, 451. ' Barrett v. Funay, 38 Ind. 86; Thomson on Bills, 156. * Monsou V. Drakely, 40 Conn. 552; Maiden v. Webster, 30 Ind. 317; Hol- man v. Gilliam, 6 Rand. 39; Hemmenway v. Stone, 7 Mass. 58; Barrett v. Skin- ner, 3 Bailey, 88; Marsh v. Ward, Peake, 130; Partridge v. Colby, 19 Barb. 248 ; Ladd v. Baker, 6 Fost. 76 ; Lane v. Salter, 4 Rob. (N. T.) 289 ; Galway v. Mathew, 1 Camp. 462. " Pogue V. Clark, 25 111. 335 ; Harvey v. Irvine, 11 Iowa, 82. ' Rees V. Abbott, Cowper, 832. ' Hunt V. Adams, Mass. 358; Palmer v. Grant, 4 Conn. 389. ' Fletcher v. Dyte, 2 T. R. 6; Byles, 78. 84 FORMAL REQUISITES OF BILLS AND NOTES. the joint note of all — in all four notes.^ The joint note may be valid, though the several notes are void.^ § 95. Two or more drawers. — The drawer of a bill is gen- erally a single person or a copartnership firm, or a corpora- tion. But two or more persons may unite in drawing a bill.^ And they may make it payable to their joint order, or to the order of either of them, or to a third peison or order. Some- times another person unites with the drawer as a surety, and such person is called a " surety-drawer." Where several per- sons unite in drawing a bill of exchange upon a person in whose hands they have no funds, and the bill is accepted and paid, all of them are bound to the acceptor, and neither one of them can show that he signed as surety for the others, and that the drawee knew the fact when he accepted the bill.^ The doctrine has been carried farther, and it has been held that if A. and B. draw on C. without having funds in his hands, and B. signs himself surety, both must be considered as drawers to all the parties to the bill, as well to the acceptor as the payee, for the acceptor may have been induced to accept the bill quite as much as the ijayee or other holder to take it, because B., as surety of A., was liable to him for pay- ment in the character of joint drawers.'' In New York a different vieM^ is taken, on the ground that the liability of a joint drawer extends to the payee or subsequent holder alone, and even if he draws the bill, with the understanding that he is to be liable to the acceptor, such a contract would be a parol ]Dromise to pay the debt of an- other, and void under the statute of frauds." But this view does not seem to us tenable.'' ■ King V. Home, 13 M. & W. 565. ' McClae v. Sutherland, 3 E. & B. 1 (77 E C. L. R.); Byles (Sharswood's ed.) 71 » Suydam v. Westfall, 4 Hill, 311 ; 2 Denio, 205. * Suydam v. Westfall, 4 Hill, 211 ; 2 Denio, 305. ' Swilley v. Lyon, 18 Ala. 558; Story on Bills, § 430. " Griffith V. Eeed, 21 Wend. 503 ; Wing v. Terry, 5 Hill, 160. ' Story on Bills, § 430 ; Edwards on Bills, § 370. FORMAL ELEMENTS OP BILLS AND NOTES. 85 § 96. Sixthly ; as to the drawee. — A bill of exchange being an open letter of request from tte drawer to a third person, supposed to be under obligation to accept the bill, should be regularly addressed to such person by his christian name and surname, and also by a designation of his place of resi- dence; and if it is addressed to a firm, the nanae of the firm should be expressed in the address.^ Such, at least, is requisite to perfect the bill in a proper and business-like manner; and without such accuracy in the address, it does not appear who should be called upon to accept or pay it, or who would be justified in so doing. In an early English case, it was held that it was not necessary that the bill should have a drawee;^ but that case has been distinctly repudiated, and both in England and in the United States it is settled doctrine that a drawee must be pointed out.* But the ho ) La fide holder of a check without a drawee, ' Bylcs (Sharswood'a ed.) [*84], 179; Chitty on Bills (13tli Am. ed.) [*IW\, 188; Story on Bills, § 58. " Regina v. Hawkes, 3 Moo. C. C. 60. ' Peto V. Reynolds, 9 Exch. 410. Alderson, B., said: "With respect to tlie question whether this instrument is or is not a bill of exchange, the case of Regina v. Hawkes is undoubtedly in point I must own, however, that I now think I was wrong on that occasion. The case seems to have been decided on the ground that Milner v. Graj', 8 Taunt. 739, governed it; and the fact was not adverted to, that Gray v. Milner may be thus explained: that a bill of ex- change made payable at a particular place or house, is meant to be addressed to the person who resides at that place or house. Therefore, in that case, the bill was on the face of it directed to some one; and the court held, that, inasmuch as the defendant promised to pay it, that was conclusive evidence that he was the party to whom it was addressed. But in the case of Regina v. Hawkes, the instrument was addressed to no one." See, also, Reynolds v. Peto, 11 Excb. 418; Watrous v. Hallbrook, 39 Texas, 572. In Ball V. Allen, 15 Mass. 435, Parker, C. J., says: "The mere possession of a paper drawn in the form of an order, there being no drawee in existence, we think, cannot entitle the possessor to an action in any form, for the paper may have been carelessly dealt with as being imperfect, and may have come to the possessor by finding. "It is enough for the purpose of justice, that the holder of such a paper may entitle himself to recover, merely by showing that he paid for it, or that he came otherwise fairly by it; for it can rarely happen that he will be unable to produce the person for whom he received it. If the circumstances are such as induce him to decline producing evidence of the manner in which the paper 86 FORMAL KEQUISITES OF BILLS AND NOTES- wliich has "been issued as a memorandum of indebtedness, may recover on account for money had and received.^ § 97. Where a bill was drawn payable to the drawer's order, and there was added " Payable at No. 1 Wilmot street, opposite the Lamb, Bethnal Green, London," and Avas accepted by one Milner, it was held sufficient, upon the ground that it must be considered as directed to the person residing at that house, and acceptance by the defendant was acknowledg- ment that he was intended as the drawee.^ Such a bill — any accepted bill without a drawee — is considered by many au- thorities as defective in its inception, but perfected by accept- ance, the acceptor being estopped to deny that he was the drawee.® And this seems the correct doctrine. But it was regarded in the case above cited as informal, but valid.^ That decision, however, has been questioned.^ § 98. If the bill be addressed to A., or in his absence to B., it is sufficient and valid, and will bind whichever accepts as acceptor." And it has been thought that a direction to A. or B. in the alternative, would be sufficient if both were at the same place at the same time.'' If the bill is drawn upon A., B. and C, it may be accepted by A. and B. only, and they will be bound as acceptors, and it will be no variance to allege in the declaration that it was drawn upon A. and came to him, no probable barm will be the result of his loss of the money." Story on Bills, § 58; 1 Parsons N. & B. 61 ; 2 Robinson's Practice (new ed.) 144. ' Ellis V. Wheeler, 3 Pick. 19; see Ball v. Allen, supra. = Gray v. Milner, 8 Taunt. 739; 3 Moore, 90. Dallas, C. J., said the instru- ment was clearly a bill of exchange; and that, "it being directed to a particular place, could only mean to the person who resided there; and that the defendant, by accepting it, acknowledged that he was the person to whom it was directed." ' Wheeler v. Webster, 1 E. D. Smith, 3; Thomson on Bills, 46; Grierson v. Sutherland, Scotch Case therein cited; Chitty on Bills [*164], 188; 1 Parsons N. & B. 288-9. ■* Gray v. Milner, supra; Edwards on Bills, 174. ^ Davis V. Clarke, 6 Q. B. IC; see, also, Peto t. Reynolds, supra ; Story on Bills (Bennett's ed.), 58; 1 Parsons N. & B. 62. ° Anonymous, 12 Mod. 447; Chitty, Junior, 216. ' Marius on Bills, 16; Story on Bills (Bennett's ed.) § 58. rOKMAL ELEMENTS OP BILLS AND NOTES. 87 B., without referring to C.^ But if a bill is intended to be accepted by two persons, it should be addressed to both, otherwise, though accepted by both, it will bind only the drawee as acceptor, as there cannot be a series of acceptoi's.^ The drawer and drawee may be the same person, but such an instrument would be actionable without acceptance.^ By the French and English usage, the address is uni- formly at the left hand lower corner, upon the face of the bill ; but the Italians and Dutch, as it seems, write it on the back of the bill.* But it is not supposed that the place of the address is essential, if it distinctly appear what was in- tended. § 99. Seventhly ; as to the payee. — The bill or note must point out with certainty the party who is to receive the money — that is, it must designate a payee.^ But the payee need not be named in person, it being sufficient if some one be indicated. Thus if the instrument be payable to A. or bearer, or to bearer, or to the holder, or to order, it is in- tended to mean whoever comes in lawful possession, and the holder may sue upon it." If the note be written " due the bearer f 100, which I promise to pay A. or order," it is pay- able not to the bearer, but to A. or order.'^ And whenever a bill or note is payable to a certain person or order, it is payable to whomsoever the payee named may by indorse- ment order it to be paid.^ So the instrument, though not naming a payee on its face, yet if it furnishes a sufficient description by which he may be ascertained, it is sufficient; the maxim applying id ' Mountstephen v. Brooke, 1 Barn. & Aid. 334; Story on Bills, § 58. " Davis V. Clarke, 6 Ad. & El. N. S. 16; Jackson v. Hudson, 3 Camp. 447; see Chapter XVIII on Acceptance. ' See Chapter V on Irregular, &c. Instruments. ' Story on Bills (Bennett's ed.) § 58, note 1. ' Rich V. Starbuck, 51 Ind. 87. " Mechanics' Bank v. Straiten, 3 Abbott N. Y. App. 269 ; Hathwiok v. Owen, 44 Miss. 803. ' Cock V. Fellows, 1 Johns. 143 ; see post, § 103. ' See Chapter XXI on Transfer by Indorsement. 88 FORMAL BBQUISITES OF BILLS AND NOTES certum est quod certum reddi potest. Thus it suffices if it be payable to "the administrators of the estate of A. ; " ^ or to the " trustees acting under the will of A. ; " ^ or to the "heirs of A.," though A. were then alive ; ^ or to " A. or his heirs ; " ■* or to the order of the person who should thereafter indorse it ; ^ for in all such cases tbe payee is ascertainable. § 100. Where the writing ran, " I owe the estate of A. B. $190," it w'as held that no payee was sufficiently designated, and it was inferred under the circumstances to be a mere memorandum of a balance due.^ But it has been held that a note regular in form, payable " to the estate of T. A. Thornton," might be sued on by Thornton's personal repre- sentative.'' The contrary view, however, has been taken.® If a note is payable to A., and there are two persons of the same name, father and son, it seems that it would be prima facie payable to the father; ^ but the son being in possession, and bi'inging the action, would be entitled to recover.^" Wherever there is any misdescription or misspelling of the payee's name, it may be shown who was really intended.''^ § 101. If the note were made payable "to the secretary for the time being of a certain society," it would not be ' Adams v. King, 16 111. 169; Moody v. Tlirclkeld, 13 Ga. 55. ■' Megginson v. Harper, 3 Cromp. & M. 323. = 5acon V. Fitcli, 1 Root, 181. " Knight v. Jones, 21 Micb. 161. ° United States v. White, 2 Hill, 59. ° Bowles v. Lambert, 35 111. 239. ' Hendrick's Ex's. v. Thornton, 45 Ala. 300. ° Tittle V. Thom.as, 30 Miss. 132; Lyon v. Marshall, 11 Barb. 248, Edwards, J. : "The instrument sued upon (by Lyon's representatives) was made payable to the ' estate of Moses Lyon, deceased,' and not to any person or persons by name. Such an instrument is clearly not a promissory note under the statute. But whatever it may be considered, it certainly is not a promise to pay the testator, for he is described as deceased. It could only be recovered upon as a promise to pay some other person or persons. If it be regarded as a promise to pay the plaintiffs, as it was treated in this case, there was no necessity for their suing in a representative capacity; and having done so unnecessarily, they are liable to pay costs, without a special motion or order for that purpose." ° Sweeting v. Fowler, 1 Starkie, 106 ; Wilson v. Stubbs, Hobart, 330. '° Stebbing v. Spicer, 19 L. J. G. P. 24; 8 0. B. 827 (65 E. C. L. B.). ■' Jacobs v. Benson, 29 Me. 132; Willis v. Barrett, 2 Starkie, 39; Hall v. Tafts, 18 Pick. 455. POUMAL ELEMENTS OE BILLS AND NOTES. 89 sufficient, as it would be a floating promise, the performance of which would be made to the person being secretary at its maturity ; ^ but if it be payable " to the now secretary " of a certain society, it would be different, as such person could be immediately and definitely ascertained.^ And if payable to the " trustees of W. Chapel, or their treasurer for the time being," it would suffice, as the trustees are the real payees, the. treasurer being merely designated as their agent to re- ceive payment.* So it would suffice if payable to "the treasurer or his successors in office " of a corporation named ; for the corporation would then be the real payee, and the treasurer its agent to receive payment.* And such would also be the effect of a note payable " to the treasurer of a corporation," the corporation, but not the treasurer, being named.^ § 102. If no one be named or definitely referred to as payee, the instrument is fatally incomplete ; and therefore " $500 on demand, value received,"* is mere waste paper, and so also papers running " Good for one hundred and twenty- six dollars on demand," '' and " pay on within $750." ^ But " received of A. one hundred dollars, which I promise to pay on demand," ' is regarded as sufficient, it being inferred that A. is the payee. Pothier puts a case quite similar : " If," says he, " the drawer should omit the name of the payee, but should draw ' storm V. sterling, 3 Ellis & B. 383. ' Ibid.; Robertson v. Steward, 1 Man. that spirit of comity and hiiraanity which should ameliorate as far as possible the disadvantages and hardships of conflicts between nations. But partisan judges have not been lacking in tbe conquered States, and their extreme and violent notions have found ex- pression in decisions whicb will remain as an enduring stain upon the records of the American judiciary.* § 171. Bonds issued by the convention of a secession State to raise revenues to carry on war against the United ' Osborn v. Nicholson, 13 Wall. 656. 'Eodes V. Patillo, 5 Bush (Ky.) 371; Rivers v. Moss, 6 Bush (Ky.) 600; Dearing t. Kucker, 18 Grat. 426; Boulware v. Newton, Id. 708; Lohman v. Crouch, 19 Grat. 331 ; Magill v. Manaon, 30 Grat. 527 ; Green v. Sizer, 40 Miss. 530; Murrell v. Jones, Id. 565. " Note for loan of Confederate States treasury notes void: Lawson v. Miller, 44 Ala. 616; Calfee v. Burgess, 3 W. Va. 274; Prigeon v. Smith, 31 Texas, 171; Reavis v. Blackshear, 30 Texas, 753. Contracts solvable in Confederate money held void. Biossat v. Sullivan, 31 La. Ann. 565; Latham v. Clark, 35 Ark. 574. And this has been held to apply, although the paper, on its face, was payable simply in dollars. Donley v. Tindall, 33 Tex. 43. BY WHAT LAWS OONSIBBEATION DETERMINED. 145 States have been held by the United States Supreme Court to be upon an illegal consideration.^ § 172. In respect to promissory notes given for slaves, before President Lincoln's emancipation proclamation was issued, the Supreme Court of the United States has set the question of their validity at rest. It has been decided by that tribunal that a note dated March 26th, 1861, and given for a slave, could be recovered upon, notwithstanding that slavery was abolished on the first of January, 1862, and the contract of sale contained the warranty, " the said negro to be a slave for life," ^ and also notwithstanding the thirteenth amend- ment to the Constitution, made in 1865, by which it is or- dained that " neither slavery nor involuntary servitude shall exist in the United States nor in any place subject to their jurisdiction." In the State tribunals of the Southern States, where this question has been of much consequence, conflicting views have been taken, but many of the cases concur in judgment with the Supreme Court of the United States,* and in other States of the Union, both before and since the war, the prin- ciples of these decisions have been asserted.* § 173. A recovery upon instruments executed for slaves, or for Confederate money, has been sought to be prevented by articles in the new Constitutions of some of the States, -denying jurisdiction to the courts to enforce them ; or in ' Hanauer v. Woodruff, 15 Wall. 439. '' Osbora V. Nicholson, 13 Wall. 655 ; Boyce v. Tabb, 18 Wall. 548. In Fitz- patrick V. Hearne, 44 Ala. 171, it was held that a warranty on the sale of slaves '" that the title of said slaves was warranted for the life of said negro slaves," was not broken by the subsequent emancipation of the slaves. To same effect, Hand v. Armstrong, 34 Ga. 233 ; Wilkinson v. Cook, 44 Miss. 367 ; McNealy v. Gregory, 18 Pla. 417. ' McBlvain v. Mudd, 44 Ala. 48 ; Thompson v. Warren, 5 Cold. 644 ; Dowdy v. McClellan, 53 Ga. 408; Calhoun v, Calhoun, 3 S. C. 383; contra, Laprice v. Bowman, 20 La. Ann. 334; Lytle v. Wheeler, 31 lb. 193. ' Roundtree v. Baker, 53 111. 341, in which case it was held that an obligation for the purchase of a slave in Kentucky, when slavery was legal, might be sued npon in Illinois, and the subsequent abolition of slavery did not affect the note Vol. I.— 10 146 CONSIDERATION OF NEGOTIABLE INSTRUMENTS, some such language declaring that they shall be deemed void. But such declarations, whether of a State Constitu- tion or of a legislative enactment, evidently violate the pro- vision of the national Constitution prohibiting the passage of any law impairing the obligation of a contract. The United States Supreme Court has so held,^ and the decision is obviously just ; but some of the Southern tribunals have held otherwise.® In some of the States it has been held that notes for slaves sold after Lincoln's emancipation proclamation were as valid as those for slaves sold before,^ and according to the princi- ples of the text, which the authorities amply sustain, there can be substantially no difference in the cases, the Confederate Government being in power and protecting slavery within its lines as a legal institution. But the Supreme Court of the United States, in the case above quoted, especially Avithheld any opinion as to cases arising after emancipation. SECTION III. BETWEEN WHAT PAETIES THE CONSIDEItATION IS OPEN TO INQtTEET. § 174. The same rule which admits inquiry into the con- sideration of negotiable paper between the original payor and payee extends to admit such inquiry in any suit between parties between whom there is a privity. That is to say, be- tween, the immediate parties to any contract evidenced by the drawing, accepting, making or indorsing a bill or note, it may be shown that there was no consideration (as, that it was for accommodation) ; * or that the consideration has failed, or a set-off may be pleaded ; but as between other ' White V, Hart, 13 Wall. 646; Boyce v. Tabb, 18 Wall. 548; McElvain v. Mudd, 44 Ala, 48; McNealy v. Gregory, 13 Fla. 417. ^ Graham v. Maguire, 39 Ga. 531; Green v. Clark, 21 La. Ann. 567; LawsoQ V. Miller, 44 Ala. 616 ; Barrow v. Pike, 31 La. Ann. 14. " McElvain v. Mudd, 44 Ala. 48; Hall v. Keese, 31 Tex. 504. ' Murphy v. Keyes, 39 N. Y. Sup. Ct. 18. CONSIDERATIOK OPEN TO IKQUIKY. 147 parties remote to each other, none of these defenses are ad- missible. It becomes important then to determine who are to be regarded as the immediate parties, or parties between whom there is a privity, to a negotiable instrument, and who are remote. Among the former may be classed : (1) The drawer and acceptor of a bilV or (2) The drawer and payee*' of a bill as a general rule ; (3) The maker and payee of a note ; ^ and (4) The indorser and immediate indorsee of a bill or note.* But the want of consideration, or the failure thereof, can- not be pleaded in a suit brought : (1) By an indorsee against the maker of a note ; (2) By an indorsee against a prior but not his immediate indorser ; ^ nor (3) by the payee against the acceptor of a bill, as a general rule.^ They are regarded as remote parties to each other, and between such parties two distinct considerations must be inquired into in order to perfect a defense against the holder : (1) The consideration which the defendant received for his liability ; and (2) That which the plaintiff gave for his title.'^ And if any inter- ' Thomas v. Thomas, 8 Wise, 476. Where it was held that acceptors could show as against drawers that they accepted for too much. Spurgin v. McPhee- ters, 43 lud. 527. " McCnlloch V. Ploffman, 17 N. T. S. C. (10 Hun), 133; Spurgin v. McPhee- ters, 43 Ind. 537. ° Puget de Bras v. Forbes, 1 Esp. 117; Jeffries v. Austin, 3 Stra. 674. ' Baston v. Pratchett, 1 Cromp. M. & R. 798 ; 3 Cromp. M. & R. 543 ; Holi- day V. Atkinson, 5 B. & C. 501 ; Abbott v. Hendricks, 1 Man. & G. 791 ; Klein V. Keyes, 17 Mo. 336 ; Bamet v. Offerman, 7 Watts, 180 ; Clement v. Reppard, 15 Penn. St. Ill ; Spurgin t. McPheeters, 43 Ind. 537. ' 1 Parsons K. & B. 176. ° Hoffman & Co. v. Bankof Milwaukee, 13 Wall. 181. In this case a consignor who had been in the habit of drawing bills of exchange on his consignee, with bills of lading attached to the drafts drawn, drew hills on him with forged bills of lading attached to the drafts, and had the drafts, with the forged bills of lad- ing so attached, discounted in the ordinary course of business by a bank ignorant of the fraud, and the consignee, not knowing of the forgery, paid the drafts. It . was held that there was no recourse by the consignee against the bank. See the opinion of the court, p. 190. In Marsh v. Low, 55 Ind. 371, breach of warranty on sale of personal property by the drawee to drawer was held no defense to ac- ceptor. ' Hoffman & Co. v. Bank of Milwaukee, 13 Wiill. 181 ; Craig v. Sibbett, 15 148 CONSIDEBATION OF NEGOTIABLE INSTRUMENTS. mediate holder gave value for the instrument, that interven- ing consideration will sustain the plaintiff's title.^ § 115. Who are the immediate parties to a bill or note however does not always appear on its face. The name of the payee is often left blank, or there is an indorsement in blank upon the instrument, and in such cases when the blank is filled up with the holder's name he would appear to be the original payee or indorsee.* In such cases the holder may show that his ostensible is not his real relation to the paper; and the want or failure of consideration cannot be pleaded against him if he show that it has passed through intermediate hands, and tbat he is not the immediate prom- isee of the party attempting the defense.'^ If the note were made to the payee for his accommodation, and indorsed by him to a holder who parts with nothing on the faith of its transfer, and had notice of its accommodation character, upon these facts appearing, the holder could not recover.* § 176. So, also, it may be that the drawer is the pri- mary debtor, and bound to the acceptor, although as to third parties the acceptor would be the principal. As, for instance where the acceptance has been upon letters of credit ^ or for the drawer's accommodation.'' So, if A. for a good consideration, moving from B. to him, should procure Penn. 240; U. S. v. Bank of Metropolis, 15 Peter3, 393; Swift v. Tyson, 16 Peters, 1; Robinson v. Reynolds, 3 Q. B. 196 (43 E. C. L. R.) ; Thiedemann v. Goldsmith, 1 De Gex F. & J. 4; Hunter v. Wilson, 19 L. J. Excli. 8; 4 Exch. 489 ; Spurgin v. McPheeters, 43 Ind. 527. ' Byles on Bills (Sharswood's ed.)236; 1 Parsons N. & B. 193; Hunter v. Wilson, 4 Excb. 489 ; Boyd v. McCann, 10 Md. 118 ; Howell v. Crane, 13 La. Ann. 136 ; Watson v. Flanagan, li Tex. 854 ; Roscoe on Bills, 111 ; Kyd on Bills, 377 ; Story on Bills, § 188 ; Johnson on Bills, 80 ; see Chapter XXIV, on rights of lona fide holder or purchaser. '' Brummel v. Enders, 18 Grat. 878 ; lioflfmau v. Bank of Milwaukee, 13 Wall. 198. ' Ibid. ; Munroe v. Bordier, 8 C. B. 863; Arbouin v. Anderson, 1 Q. B. 498; Glasscock v. Rand. 14 Mo. 550 ; Horn v. Fuller, 6 IST. H. 511. * Powers V. French, 8 N. Y. S. C. (1 Hun), 583. ' Turner v. Browden, 5 Bush (Ky.) 216. • Id. CONSIDEEATION OPEN TO INQUIRY. 149 C. to make his note in favor of B., it would seem that it would be no sufficient answer in an action by B. against Q that the latter received no consideration from A.,^ or that it had failed.^ But if it were shown that there was no con- sideration between A. and C. the maker, or that such con- sideration had failed, it would then be necessary for the payee B. to show a consideration moving from him to A.^ And if the consideration between the party requesting the execution of the note and the maker were illegal, the note would not be valid, notwithstanding the consideration between such party and the payee were good, if the payee knew the consideration moving the maker were illegal. To hold otherwise would furnish an easy subterfuge to escape the consequences of illegal dealings. Thus, where A. was ' Id. ; Railroad v. Chamberlin, 44 N. H. 497. " South Boston Iron Co. v. Brown, 63 Me. 139. Barrows, J.: "Where, at the request of the party with whom he deals, one makes his promissory note, which is to be a partial payment, for a piece of work to be done for him, payable to a third party, who is a creditor of the party with whom he contracts for the work, and it is credited by the payer to such party in good faith, the maker cannot set up the defense of failure of consideration as between himself and the party with whom he deals in defense of a suit upon such note in the name of the payee." ' Aldrich V. Stockwell, 9 Allen, 45. The defendant offered to show that the note was for a water-wheel sold by Thompson to him with warranty, which had failed, the wheel being worthless, and had been made payable to plaintiff at Thompson's request. The court below ruled that these facts constituted no de- fense, but the Supreme Court held otherwise, and Gray, J., said: "If such were the facts, the defendant was entitled to treat the sale as a nullity; and the proof of entire failure of consideration would have rebutted the presumption of consideration arising from the admission of the making of the note, and would have established a complete defense as between the original parties to the note. One consideration of the note having been proved, there could be no presump- tion, in the absence of evidence, that there was any other, and the defendant was not, therefore, obliged to prove that there was no other consideration for the note. If there was any otber consideration, it was for the plaintiff to show it. As the case stood, tbe plaintiff might have held the note in trust, or as agent for Thompson. The presiding judge, by ruling that the facts offered to be proved by the defendant would constitute no defense, left nothing upon which he could go to the jury. The verdict to which he submitted under this ruling must, therefore, be set aside. Upon a new trial, it will be open to the plaintiff to show, if he can, that the consideration which failed was not the only consideration for the note, but there was another valuable consideration for it moving from the plaintiff to Thompson." 150 OONSIDEEATIOK OF NEGOTIABLE INSTRUMENTS. indebted to B. for intoxicating liquors sold in violation of law, and B. was indebted to C. for a legal consideration, and A., at B.'s request, executed a note with mortgage to C, who knew the illegalit}^ of the debt to B., it was held that such note and mortgage was invalid.^ So, if A., for a good consideration moving fromB. to him, authorizes him to draw a bill on C. to a certain amount on his (A.'s) account, and B. draws accordingly, and C. accepts, C, will be absolutely bound to B., the drawer, as to any sub- sequent hona fide holder for value.*^ But the consideration of the acceptance failing, we should think the consideration for the authority from A. to B. would have to be proven.* If the original consideration were tainted with fraud or illegality, or has failed in whole or in part, and the bill or note has passed into the hands of a lonafide holder for value without notice, yet if it be returned for a valuable consider- ation to the payee who is a privy to the original considera- tion, he could stand upon no better footing than if the in- strument had remanied in his hands.* § 177. That the bill or note has been lost or stolen,*^ or was executed under duress,^ or under fraudulent misrepre- sentations,'' or for fraudulent consideration,^ or for illegal consideration,' or has been fraudulently obtained from an intermediate holder,^" or been in any way the subject of fraud or felony,^^ or has been misappropriated and diverted,^^ is a good defense as between the parties privy to it. And the ' Baker y. Collins, 9 Allen, 253. ' Pillans V. Van Mierop, 3 Burr. 1663; 1 Parsons N. & B. 188. " Aldrich v. Stockwell, 9 Allen, 45. * Sawyer v. Wisewell, 9 Allen, 42; Kost V. Bender, 35 Mich. 516 (see post, § 805). ' Mills V. Barber, 1 M. & W. 435. " Clark v. Peace, 41 N. Hamp. ' Vathir v. Zane, G Grat. 2i6; Hutchinson v. Bogg, 38 Penn. St. 294. • Morton v. Rogers, 13 Wend. 484. See rights of lona fide holder. ° Edmonds v. Groves, 2 M. & W. 642; Bingham v. Stanley, 2 Q. B. 117; Shirley v. Howard, 53 111. 455; Holden v. Cosgrove, 12 Gray, 216. " 1 Parsons N. & B. 188. " Holden v. Cosgrove, 12 Gray, 216; Western Bank v. Mills, 7 Cush. 546. " Merchants' Nat. Bank v. Comstock, 55 N. Y. 24. CONSIDERATION OPEN TO INQUIRY, 151 «ame defense which the defendant might make to an action by an indorsee of the note given by him, and the same re- quirement of proof may be made by him in an action on a renewal of a former note, both notes being regarded as given upon the same consideration.^ § 178. Consideration of hills purohased for remissmi of money. — The writers upon foreign bills contemplate four par- ties to the transaction. 1. The giver of value or purchaser of the bill which is drawn for remittance — such purchaser desiring the draft for money on a foreign place being called the remitter. 2. The drawer of the bill. 3. The drawee abroad. 4. The payee. The ordinary course of dealing with reference to such foreign bills begins by the sale of the bill by the drawer to some person other than the payee ; and it does not contemplate, therefore, that the consideration for the bill should necessarily move from the payee to the drawer, or that no person but the drawer should have a right to confer a title to the bill upon the payee.*- In such ' See^os«, §§ 179, 305. ^ Munroe v. Bordier, 8 C. B. 863 (65 E. C. L. E.) In thia case it was held, that where the purchaser or remitter in London of a foreign bill gets from the drawer, according to the usage in London, credit until the next foreign post- day for the amount, and delivers the bill to the payee, who receives it lona fide and for value, the drawer ia liable for the amount to the payee, although, in consequence of the purchaser's or remitter's failure before the next foreign post- day, the drawer never receives value for it. The declaration stated that A. (the defendant) made a bill of exchange, and directed it to B., a merchant in France, requiring him to pay the amount to the order of C. (the plaintiff) ; that A. deliv- ered the bill to D., who delivered it to 0.; and that B. refused payment, &c. A. pleaded that he made and delivered the bill to D. for the use of C, on the faith and terms of being paid the price and value thereof according to the usage of merchants in that behalf, that is to say, on the next foreign post-day ; that neither C. nor any other person, then or at any time before or since, paid him the said price or value of the bill, or any part thereof; that he never had any value or consideration for the making or delivery of the bill ; and that C. always held and still held the same without any value or consideration whatever to him '(A.) for the same. Replication, that, after the making of the bill and before it became due, D., who appeared to be, and whom C. believed to be, the lawful holder, delivered the bill to him for a good and valuable consideration, and without notice of the premises in the plea mentioned. Held, that the plea was no answer to the action ; and that, even if it were sufficient to call upon 0. to 152 CONSIDERATION OF NEGOTIABLE INSTKUMENTS. case, there would be no privity between the drawer and payee, and the former could not plead against the latter for the want or failure of consideration. If the bill be delivered by the drawer to the remitter upon a promise to pay the price next day, and the remitter, ■without paying, transmit the bill to the payee, the drawer might plead no consideration to the suit of the latter, pro- vided the remitter were his agent.^ But if the remitter purchase the bill on credit for himself, and sell it in good faith to the payee, the drawer could not resist the payee's suit for want of consideration if the remitter failed to pay the purchase money.^ Thus, if Duncan, Sherman & Co., of New York, being indebted to Gilliatt & Sons, of London,, procure Fisk & Hatch, New York, to draw a bill on London in favor of Gilliatt & Sons, and remit it to the latter in pay- ment of the debt, the liability of Fisk & Hatch to Gilliatt & Sons will be absolute, whether any consideration for tke drawing of the bill has been paid by Duncan, Sherman & Co. or not. But if Duncan, Sherman & Co. were agents of show iona fides, he did so by his replication. In Kyd on Bills, it is said the parties to bills of exchange are generally four, two at the place where the bill is drawn, and two at the place of payment; as where A., a merchant at Amsterdam, owes money to B., a merchant in London, instead of 'sending the money in specie to B., he applies to C, another merchant in Amsterdam, to whom D., a fourth person residing in London, is indebted to an equal amount. A. pays to C. tlie- money in question, and receives from him a bill directed to D. to pay the amount to B., or to any one appointed by him, who sends it to his correspondent B., with an order that the money be paid to him by D. Kyd on Bills, 3. ' Puget de Bras v. Torbes, 1 Esp. 117. The plaintiff resided in Holland, and, having money in England, employed Agassiz, Rengement & Co., as his agents,. to sell it out, and to remit it to him in bills on Holland. The agents bought of the defendants bills on Holland in favor of the plaintiff; and it was proved to- be the custom of London, for persons in the habit of remitting foreign bills, to give the bills on one day, but not to receive the money for them until the next post-day. The bills were bought on Feljruary 17, and the next post-day was Tuesday, February 21. On Monday, the 20th, Agassiz, Rengement & Co. stopped payment, so that the defendants, in fact, never received any value for the bills which they had so drawn on Holland in favor of the plaintiff; and they having ordered their correspondent abroad not to pay the bills, an action was brought against them by the plaintiffs, as drawers. It was held that they were not bound. " Munroe v. Bordier, 8 C. B. 872 (65 E. C. L. R.) ; 2 Rob. Prac. (new ed.) 145. WHAT AEE SUFFICIENT AND LEGAL CONSIDERATIONS. 153 Gilliatt & Sons in purcliasing the bill, ttere would then be a privity between Grilliatt & Sons and Fisk & Hatch, and want of consideration could be pleaded. SECTION IV. WHAT AEE SUFFICIENT AND LEGAL C0NSIDEEATI0N8. § 179. When it lias been determined that the relations of the parties are such as to admit an inquiry into the con- sideration, it becomes then important to ascertain what is sucli a consideration as will support an action upon a nego- tiable instrument. A valuable consideration is necessary to support any contract, and the rule makes no exception as to the character of the consideration respecting negotiable in- struments when tbe consideration is open to inquiry. There- fore, a consideration founded on mere love and aflPection, or gratitude, is not sufficient to sustain a suit on a bill or note ; as, for instance, when a bill or note is accepted or made by a parent in favor of a child, or vice versa, it could not be en- forced between tbe original parties, tbe engagement being gratuitous upon what is called a good, in contradistinction to a valuable consideration.^ And if a note is executed and delivered with the inten- tion of presenting it as a gift, and is afterward taken up and a new note given in its stead, the renewed note is without valuable consideration.* And, of course, a note given by a parent to his child during his lifetime could not be enforced after his deatli against his estate.^ ' Parker v. Carter, 4 Munf. 373 ; Hill v. Buckminster, 5 Pick. 391 ; overruling Bowers v. Hurd, 10 Mass. 427 ; Fink v. Cox, 18 Johns. 145 ; Pearson v. Pearson, 7 Johns. 26 ; Pennington v. Gittings, 2 Gill & J. 208; Smith v. Kittridge, 31 Vt. 238 ; Holliday v. Atkinson, 5 B. & C. 501; Easton v. Prachett, 1 Cromp. M. & R. 798 ; 2 Cromp. M. & R. 543 ; Story on Bills (Bennett's ed.), 181 ; 1 Parsons N. & B. 178; Chitty on Bills (13th Am. ed.), 89. ' Copp V. Sawyer, 6 N. H. 386 ; Hill v. Buckminster, 5 Pick. 391. See § 205. ' Phelps V. Phelps, 38 Barb. 121. 154 CONSIDERATION OF NEGOTIABLE INSTRUMENTS. § 180. It seems now to be settled, that a bill, note or check, delivered by the maker or drawer to the payee as a gift, and without any adequate consideration, but intended by him to be paid, cannot be enforced as against the donor or his per- sonal representative.' But a note given " for value received and his kindness to me," would be good, the first part of the sentence denoting an adequate consideration.^ But the in- dorsee could not enforce against his indorser a note indorsed to him as a gift.* Where a note without consideration was delivered to the payee in a sealed envelope, on the condition that the seal should not be broken in the maker's lifetime, and the maker dying, the envelope was opened, it was held that the payee could recover, although he did not know the contents of the envelope until it was opened.* A request written by the maker below a promissory note that the payee will accept the note from his true friend the writer, is not conclusive as matter of law that the note was without consideration, although the note was delivered in a sealed envelope, whereon was indorsed a request not to open it till after the writer's deatk.'* Evidence of a party's pecuniary circumstances is not com- petent to show want of consideration.* In general the mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not a de- fense to a promissory note. If no part of the consideration was wanting at the time, and no part of it subsequently failed, although inadequate in amount, the note is a valid obligation, while a want or failure of consideration, in whole or in part, is a good defense to the whole note, or to the ex- tent of such failure.'^ § 181. A gift of a negotiable instrument of a third party ' Holliday v. Atkinson, 5 B. & C. 501 ; 8 Dow & R. 163. See ante, Chap. I, §25.' ' Woodbridge v. Spooner, 3 B. & Aid. 335. " Easton v. Pratcliett, 1 C. M. & R. 798. ' Worth v. Case, 43 N. Y. 362. ' Dean v. Carruth, 108 Mass. 343. = Hartman v. Shaffer, 71 Penn. St. 313. ' Earl V. Peck, 64 N. T. 598 ; Worth v. Case, 42 N. Y. 363. WHAT ARE SUFFICIENT AND LEGAL CONSIDEBATIONS. 155 is not such a negotiation of it in the usual course of business as to give the donee the full protection which is extended a bona fide holder for value. And if the donee afterward transfer it for less than its value, or for a wholly inadequate consideration, his indorsee can recover from a prior party having a defense against the donor only what he himself paid for it.^ But as to all prior parties having no defense against the donor, the donee can himself recover the whole amount,^ and a fortiori, an indorsee who has paid only a partial consideration may recover the whole amount against all prior parties who have no defense against his immediate indorser.^ § 182. A mere moral obligation not sufficient. — A mere moral obligation, although coupled with an express promise, will not constitute a valuable consideration, and it is only where there is a precedent duty which would create a suf- ficient legal or equitable right if there had been an express promise at the time, or where there is a precedent consider- ation, that an express promise will create or revive a cause of action. Thus, a promissory note made after full age for neces- saries furnished to the promissor during infancy ; * or a note executed for the payment of a debt discharged in bankruptcy, or barred by the statute of limitations,® or voluntarily re- leased,^ or for the reimbursement of a person who has volun- ' Byles on Bills (Sharswood's ed.), 327 ; Nash v. Brown, Chitty on Bills (13 Am. ed), 89; Brown v. Mott, 7 Johns. 361; Holeman v. Hobson, 8 Humph. 137; Bethune t. McCrary, 8 Georgia, 114; Ohicopee Bank v. Chapin, 8 Met. 40; Youngs V. Lee, 18 Barb. 187. See ante. Chap. I, § 34. " Milnes v. Dawson, 5 Exch. 9i8. ' Moore v. Oandell, 11 Mo. 614; Turner v. Brown, 3 Smedes & M. 435; Far- bell V. Sturtevant, 38 Vt. 513; Beid v. Furnival, 5 C. & P. 499. * Hawkes v. Saunders, Cowp. R. 389 ; Eastwood v. Kenyon, 11 Ad. & El. 438 (39 E. C. L. R.) ; Chitty on Bills (13 Am. ed.) 87. ' Eastwood V. Kenyoil, 11 Ad..& El. 438 (39 E. C. L. R,) ; Trueman v. Fenton, Cowp. 544. ' Stafford v. Bacon, 35 Wend. 384; Valentine v. Foster, 1 Mete. 520; Snevely V. Read, 9 Watts, 396. I5G CONSIDERATION OF NEGOTIABLE INSTRUMENTS. tarily paid a debt of the promissor/ \yould be valid, as upon any other valuable consideration. And in any case where the contract was merely voidable, but otherwise founded on a valuable consideration, a bill or note given to discharge it will be valid — but otherwise if the contract were void.^ But it Las been held in England by the Court of Ex- chequer, that a bill given since the repeal of the usury laws to pay a debt with usurious interest, contracted during the existence of the usury laws, was binding." And a note given by the purchaser of an estate to the vendor for the purchase money, is made on sufficient consideration though the con- tract be void by the statute of frauds.* The indorsement of a note of a bankrupt by the payee gives it no effect as to the bankrupt; and it has been held that a new promise by the bankrupt after his discharge in bankruptcy, and after the in- dorsement, does not revive his liability ; ^ but it has been held in Massachusetts that a promise by the maker of a note after his discharge in bankruptcy to pay it is a contract to pay it according to its tenor,* and we cannot see that there is any just reason to the contrary. If the bankrupt could bind himself by a renewal, why insist on that form of obligation when the same result is attainable by his recognition of his old one ? It is, in effect, a renewal of its vitality without the circumvention of requiring a new execution of it. § 183. Not only will money paid, or advances made, or credit given, or work and labor done, constitute a sufficient consideration for a bill or note — but receiving a bill or note as security for a debt or forbearance to sue upon a present claim or debt, or becoming a surety, or doing any other act ' Hayes v. Warren, 3 Str. 933 ; Stokes v. Lewis, 1 Term R, 30. ' Eastwood V. Kenyon, 11 Ad. & El. 438 (39 E. 0. L. E.) ; Littlefield v._Shee, 3 Barn. & Adol. 811. = Flight V. Reed, 33 L. J. Exch. 265 ; 1 H. & C. 708 (S. S.). ' Jones V. Jones, 6 M. & W. 84. ' Walbridge v. Harron, 18 Vt. 448; White v. Wardwell, 31 Me. 558. ' Way V. Sperry, 6 Cush. 238. WHAT ARE SUFFICIENT AND LEGAL CONSIDERATIONS. 157 at the request of the drawer, indorser, or acceptor, will be equally sufficient to enforce his engagement.^ A note on con- dition that the payee abstain for a certain time from intoxi- cating drink would be valid.^ § 18Sa. Bankers receiving the bills or notes of their cus- tomers for collection are considered holders for sufficient con- sideration, not only to the extent of advances already made by them either specifically or upon account, but also for future re- sponsibilities incurred upon the faith of them.^ The balances upon an account are a shifting consideration for bills and notes •deposited as security with the banker.* Thus, where one bank, which we may call A., seat an accommodation bill accepted by C, to another bank, which we may call B., to secure an indebtedness upon account ; and when the bill became due, the latter bank had become indebted to the former, but the bill was not withdrawn, and subsequently the indebtedness shifted back, and the original debtor, bank A, became bankrupt, owing to the correspondent B. a sum upon account, it was held that the latter could recover against C. upon the accommodation bill accepted by him.^ Where a bank discounts a bill before maturity, paying part of the proceeds in money, and applies the residue in payment of a past due note of the payee which is surrendered, it is a holder for valuable consideration.^ Where a note was deliv- ered by the maker to the payee to be discounted for the maker's benefit, and the payee left it at the bank with the ' Bayley on Bills, ch. 12; Chitty on Bills (13 Am. ed.) 86 ; Roscoe on Bills, 386; Poster t. Wise, 27 La. Ann. 538. A promise by A. to indemnify B. for be- coming guarantor for C. is not within tbe statute of frauds, and need not be in writing. Chapin v. Merritt, 4 Wend. 657. ' Lindell t. Rokes, 60 Mo. 249. ' Byles on Bills (Sharswood's ed.) 230 ; Bosanquet v. Dudman, 1 Stark, 1 ; Percival v. Frampton, 2 Cromp. M. & R. 180. ' Bank of Metropolis v. New England Bank, 1 How. 239; s. c. 17 Peters, 174; Swift V. Tyson, 16 Peters, 21. " Attwood V. Crowdie, 1 Stark. 483 (2 E. C. L. R.) ' Mechanics', &c. Bank t. Crow, 60 N. Y. 85 ; Brown v. Leavitt, 81 N. Y. 113; Pratt v. Coman, 37 Id. 440. 158 CONSIDERATION OF NEGOTIABLE INSTRUMENTS. uuderstanding that lie, the payee, might draw against it, it was held in a suit against the maker, of whose interest in the note the bank had no notice, that the maker was liable for the sums drawn against the note by the payee, the payment of which smiis was in effect a discount of the note to the amount so paid ; also that the result would be the same if it should be considered that the note was simply pledged for the sums paid upon the draft.^ § 184. As to pi^e-exisilng debts. — There is no doubt that a pre-existing debt of the drawer, maker, or acceptor is a valid consideration for his drawing or accepting a bill or exe- cuting a note, and indeed is as frequently the consideration of negotiable paper as a debt contracted at the time,^ and it is equally as valid and sufficient consideration for the in- dorsement and transfer to the creditor of the bill or note of a third party which is in his hands. And the best con- sidered, as well as the most numerous authorities, regard the creditor who receives the bill or note of a third party from his debtor either in payment of,^ or as collateral security for, his debt, as entitled to the full protection of a bona fide holder for value, free from all equities which might have been pleaded between the original parties.* ' Piatt V. Beebe, 57 N. Y. 339. ^ Swift V. Tyson, 16 Peters. 1 ; Townsley f. Sumrall, 3 Peters, 170. '' See Chapter XXFV, on lonafide holder; Byles [*131], 229; Swift v. Tyson, 16 Peters, 1 ; Bank of St. Albans v. Gilliland, 33 Wend. 31 ; Bank of Sandusky V. Scoville, 34 Wend. 115; Youngs v, Lee, 18 Barb. 187; Bertrand v. Barkman, 8 English, 150; Henry v. Ritenour, 31 Ind. 136; Robinson v. Lair, 31 Iowa, 9; Smith v. Isaacs, 33 La. Ann. 454 ; Schepp v. Carpenter, 51 N. Y. 603 (1873). In this case, Carpenter made his note to and for accommodation of Churcl), without restriction, and Church, being indebted to plaintiff in a larger sum, transferred the note to him on account thereof, and was credited with the amount, Johnson, C, said: "The existence of the debt from Church to the plaintiff was a sufficient consideration between them to sustain a promise to pay it, or a transfer of property to secure its payment, and according to the doctrine which has prevailed in this State for many years, to sustain the transfer of a note made for the debtor's accommodation and general benefit." ' See Chapter XXV, Section 1, § 832. WHAT ARE SUFPIOIENX AND LEGAL CONSIDERATIONS. 159 § 185. As to debts of tliird persons. — There is no doubt that a debt due from a third person, as from A. to B., is a good consideration for a note as from D. to B., provided there were an express agreement for delay/ or an implied agreement whicb would arise if the debt were then due, and the note were made payable at a future day.^ So the sur- render up of an obligation of a third person is a sufficient consideration.^ If the original debt from the third person were payable simultaneously with the note, there might be a want of consideration unless credib for the original debt had been given upon a promise of the note, which would be sufficient.* A note given for the payee's assumption of the debt of the maker evidenced by another note is upon suffi- cient consideration.^ So a note given by a father for the benefit of his son to be applied by the latter in part pay- ment of a defalcation.^ So any other thing done at his re- quest by the promisee for a third person will, in general, be a sufficient consideration — such as forbearing: to sue on a debt due by such person, or guaranteeing his debt, or becom- ing liable for his acts or defaults.' § 186. While as a general rule, the discharge of a debt of a third person will be a valid consideration for a bill or note,^ in Massachusetts it has been held that a promissory note given by a widow to a creditor of her deceased husband is void for want of consideration if the husband has left no estate or assets ; and although the creditor gives the widow at the same time a receipted bill acknowledging payment from her husband's estate by the note, the circumstances ' Mansfield v. Corbin, 3 Cush. 151 ; Guy v. Bibend, 41 Cal. 334. = Parsons N. & B. 195 ; Balfour v. Sea, Fire, & Life Ins. Co. 3 C. B. N. S. 30a (91 E. C. L. R.) ; Thompson v.Gray, 63 Maine, 238 ; York v.Pearson, 63 Maine, 587. ' Henry v. Eitenour, 31 Ind. 136. * Crofts V. Beale, 11 C. B. 173 (73 E. C. L. R.) ; 1 Parsons N. &. B. 195. ° Turner v. Rogers, 121 Mass. 13. But see Stuienmire t. ^Vare, 48 Ak. 589. " Papple V. Day, 123 Mass. 531. ' Story on Bills, § 183. « Brainard v. Capella, 31 Mo. 438 ; Arnold v. Sprague, 34 Vt. 403 ; Thatcher T. Dinsmore, 5 Mass. 299; Byles on Bills (Sharswood's ed.) [*123], 233; Pople- well V. Wilson, 1 Stra. 264; Railroad v. Chamberlain, 44 N. H. 497; ante, § 184. IGO CONSIDERATION OF NEGOTIABLE INSTRUMENTS. being such that no good could be derived by the widow, or injury done the creditor by the transaction.^ In Alabama, where the husband had assets, the widow, who gave a note for his debt, was held not bound, the payee having repre- sented to her that she was liable to pay the debt, the court resting its decision partly on the view that there was no consideration, and partly on the view that the representation was fraudulent.^ And in Maryland it was held a note given by a vestryman of a church to pay a debt of the church was with- out consideration, and void ; and the fact that it was payable at a future day to raise no presumption of forbearance to sue, it appearing that it was made for the purpose of closing an account.^ A promissory note given by the heir, in renewal of one made by his ancestor, which was barred by limitation, at the time of the latter's death, has been held void for want of consideration.^ § 187. Cross notes and acceptances and other instances. — If one gives his acceptance to another, that will be a good •consideration for another bill or acceptance, although such first acceptance be unpaid.^ " By the exchange of the obliga- tion of one for that of another, a good consideration is raised for the undertaking of each." ^ A note given by a borrower 'Williams v. Nichols, 10 Gray, 83, Dewey, J., saying: "The widow would derive no benefit from the discharge of a debt due by her deceased husband. Nor do we perceive how any possible damage to such creditor could arise from having given a receipt to the widow purporting to discharge such demand." ■Contra, York v. Pearson, 63 Maine, 587. It is said in England that it is a suffi- cient consideration for a note that it be given by a widow out of respect to the memory of her husband. Chitty on Bills (13 Am. ed.) 82. No such decision would, we think, be now rendered. " Maull V. Vaughn, 45 Ala. 141. See also Watson v. Reynolds, 54 Ala. 192, where it is held that a widow's note for debt of deceased husband, not taken in payment, and where there was no suspension of the remedy, or receipted account, is without consideration. In California, where widow was executor and the estate community property, so that she had an interest in it, her note to a creditor of her husband was enforced, though the debt was outlawed and she thought otherwise. Mull v. Van Trees, 50 Cal. 547. = Rogers v. Waters, 2 Gill & J. 84. ' Didlake v. Eobb, 1 Woods, 680. ' Rose V. Sims, 1 B. & Ad. 531 (20 E. C. L. R.) ' Newman v. Frost, 52 N. Y. 424, Folger, J. WHAT ABE SUFPICIElirT AND LEGAL CONSIDERATIONS. 161 for the amount of cash loaned, and including also a note given, for the balance of the loan, is upon good consideration to the whole amount.^ And cross acceptances, or cross notes, bills or checks for the mutual accommodation of the parties, are respectively considerations for each other.^ And a con- tract between two accommodation indorsers that they will share any loss equally between them, is upon sufficient con- sideration.^ ^ Where one has given his own note in purchase of the note of another from the payee, notice to him by the maker not to pay his note given in purchase, and that the bought note originated in fraud, does not deprive him of the charac- ter of a iona fide holder for value, and he need pay no atten- tion to such notice.* Where a note is given for a draft as- signed by the payee to the maker, and an agreement is made at the same time that in the event the maker of the note could not collect or realize on the draft, he was to be released from payment of the note, no recovery can be had on the note, if the maker has been unable to realize on the draft.^ Delay in fulfilling a promise to marry and services ren- dered during the engagement, constitute a good considera- tion for a note ; ® and in Scotland it has been held that a bill granted to a woman as a security for a promised marriage is valid, and may be enforced against the man if he break his promise.'' The meiitorious consideration arising out of the ' Backus V. Spaulding, 116 Mass. 418. " NewmaD v. Frost, 50 N. Y. 427; Wooster v. Jenkins, 3 Denio, 187; Mickles V. Colvin, 4 Barb. 304; Adams v. Soule, 83 Vt. 539; Stickney v. Mohler, 19 Md. 490; Whittier V. Eager, 1 Allen, 449; Shannon v. Langhorne, 9 La. Ann. 536; Eaton V. Carey, 10 Pick. 211; Bacon v. Hollo way, 2 B. D. Smith, 159; Dowe v. Schutt, 2 Denio, 621; Rankin v. Knight, 1 Cincinnati, 515; Crescent Bank v. Hernandez, 25 La. Ann. 43. = Phillips T. Preston, 2 How. 378. * Adams v. Soule, 33 Vt. 538. " Hall V. Henderson, 84 111. 611. " Prescott V. Ward, 10 Allen, 203. ' Thomson on Bills (Wilson's ed.), 72; citing Calder v. Provan (Scotch case). In Lew V. Peers, 4 Burr, 2235, judgment was arrested on a bond which defend- ant had agreed to pay plaintiff if he married any one else but her. This case is clearly distinguishable from the principle of the text of Thomson, though he seems to think it in conflict. Vol. L— 11 162 CONSIDERATION OF NEGOTIABLE INSTRUMENTS. duty of a husband to support his wife, is not sufficient in equity to sustain a note, given by the husband to the wife, as against the husband's collateral heirs.^ § 188. Professional services, whether of a physician, at- torney, or other person, in the learned or skilled professions, constitute, in general, a sufficient consideration for a bill or note; and consideration that the plaintiff, an attorney, should prevent the approval of the commanding general to the sen- tence of a military court condemning a guerilla to death, is valid.^ Services rendered in procuring a pardon for an offense have also been respected ; " though it has been said by some of the authorities that this would contravene public policy unless done by leave of the court.* This is, we think, too severe. Services exerted in procuring the passage of an act through a legislative body are not recognized as the legitimate exercise of the legal profession ; and compensation for them cannot be recovered.^ K contingent upon the passage of a bill, it would be obvious that they were illegiti- mate.^ A note to a railroad corporation, to be paid when the road is constructed, is upon sufficient consideration.^ § 189. Accommodation hills and notes. — The mercan- tile credit of parties is frequently loaned to others by the signature of their names as drawer, acceptor, maker or in- dorser of a bill or note, used to raise money upon, or other- wise for their benefit. Such instruments are termed accom- modation paper. An accommodation bill or note, then, is one to which the accommodating party has put his name, ^ Whitaker v. Whitaker, 53 N. Y. 3G8. ' Thompson v. Wharton, 7 Bush (Ky.) 563. ' Meadow v. Bird, 32 Ga. 346. * Chitty on Bills (13th Am. ed.) 100; Thomson on Bills (Wilson's ed.) 70; citing Stewart v. Earl of Galloway (Scotch case) ; Norman v. Cole, 3 Esp. 353. ' Marshall v. Bait. & O. R. R. Co. 16 How. 334; Clippinger v. Hepbaugh, 5 Watts & Serg. 315. See Sharswood's Legal Ethics (3d ed.) 99. • Mills Y. Mills, 40 N. Y. 543. ' Rose V. San Antonio R. R. Co. 31 Tex. 49. WHAT ARE SUFFIOIEKT AND LEGAL 001*1 SIDEEATIONS. 163 without consideration, for the purpose of accommodating some other party who is to use it and is expected to pay it.^ Between the accommodating and accommodated parties the consideration may be shown to be wanting, but when the , instrument has passed into the hands of a third party for value, and in the usual course of business, it cannot be ; ^ for as between remote parties, as we have already seen, the con- sideration which the plaintiff gave for his title, as well as that for which the defendant contracted the liability, must be im- peached in order to defeat a recovery.^ And the circum- stance that the accommodation maker was assured that the payee would protest it being known to the holder, does not weaken in any degree his title to recover.* § 190. An accommodation indorser, who has paid the amount of the note to a subsequent indorser, may recover of the maker without offset, although he knew when he in- dorsed it that the maker was a creditor of the payee for an amount greater than the amount of the note.' And the payee may recover against the acceptor, although he knew when he took the bill that the acceptance was for accommodation of another party.^ And it has been held that the accommoda- tion payee and indorser may recover the full amount of the note, although he took it up by paying ^only a part.'' But this is, we think, erroneous. If one member of a firm obtains an accommodation note payable to himself, and afterwards indorses it to a third per- son, who re-indorses it to the same firm, before maturity, and for good consideration, such firm cannot recover against ' Byles on Bills (Sharswood's ed.) [*135], 237; Fant v. Miller, 17 Grat. 47; Robertson v. Williams, 5 Munf. 531. ' Violett T. Patten, 5 Cranch (S. 0.}, 143 ; Yeaton t. Bank of Alexandria, Id. 49; French v. Bank of Columbia, 4 Cranch (S. C), 59; Fant y. Miller, 17 Grat. 47; Robertson v. Williams, 5 Munf. 331. ' Ante^ Chapter VII, sec. 3. * Thatcher v. West River National Bank, 19 Mich. 196. ' Barker v. Barker, 10 Gray, 339. " Spurgeon v. McPheeters, 42 Ind. 527. ' See Chapter XLI on Principal and Siirety, § 1353, note. 164 CONSIDEEATION OF NEGOTIABLE INSTEUMENTS, the maker, both parties being affected witb the notice of a want of consideration/ § 191. An accommodation bill or note is not considered a real security, but a mere blank, until it has been negoti- ated, and it then becomes binding upon all the parties, in like manner and to the like effect as if they were successive indorsers;^ but until it has been negotiated any party may withdraw his indorsement, acceptance or other liability upon it, and rescind his engagement ; and that right is not im- paired by the circumstance that he may be indemnified by an assignment or other security.^ § 192. A person who indorses a note as an accommoda- tion indorser for the payee, such note having been made by an accommodation maker, is subject to all the obligations and acquires all the rights of a party to negotiable paper. If obliged to take up such note, the accommodation maker cannot set up fraud on the part of the payee in the inception of the note, as a defense to his suit.* § 193. Fraudulent considerations. — " Fraud cuts down everything," is the sharp phrase of the Lord Chief Baron Pollock in an English case.^ And between immediate par- ties it at once destroys the validity of a bill or note into the consideration of which it enters. We have seen that if a horse or other personal chattel is warranted, and a bill, note or check given for the price, the breach of the warranty is no defense to the action on the bill, note or check (unless authorized by statute) ; but if it appear that the seller knew that there was unsoundness in the horse or other chattel, the element of fraud enters into the transaction. There was in fact, no contract, and proof of the fraud at once defeats the ' Quinn v. TuUer, 7 Gush. 244. ' Whitworth v. Adams, 5 Rand. 342; Taylor v. Bruce, Gilmer,'42 ; May v. Boisseau, 8 Leigti, 164 ; Downes v. Richardson, 5 Barn. & Aid. G74. = May V. Boisseau, 8 Leigh, 164. ■■ Laubach v. Pursell, 35 N. J. L. R. 434. ' Rogers v. Hadley, 33 L. J. Exch. N. S. 248 (1803). WHAT ARE SUPFICIENT AND LEGAL CONSIDEEATIONS. 165 action on the bill, note or chect.^ While inadequacy of con- sideration in the origin, or transfer of a negotiable instru- ment, is not in itself, a defense to a suit upon it, yet it is •oftentimes a circumstance strongly tending to show a fraud in the contract in which it was given or transferred. Evi- Scott V. Gillmore, 3 Taunt. 226; Robinson v. Bland, 3 Burr. 1077 ; Hay v. Ayling, 3 Eng. Law & Eq. 416 ; Hanauer v. Boane, 13 Wall. 313 ; Carlton v. Bailevf 7 Eost. 330 ; Brigham v. Potter, 14 Gray, 533; Deering v. Chapman, 33 Me. 488; Woodruff v. Heniman, 11 Vt. 593; Clark v. Ricker, 14 N. H. 197; Hyslop V. Clarke, 14 Johns. 465 ; Chandler v. Johnson, 39 Ga. 85 ; Wynne v. Whesenant, 37 Ala. 46; Kidder v. Blake, 45 N. H. 530; Widoe v. Webb, 20 Ohio, N. S. 637; Snyder v. Willey, 33 Mich. 483. = Brigham v. Potter, 14 Gray, 532; Denny v. Dana, 3 Cush. 160. = Byles on Bills (Sharswood's ed.) [*140], 356. * Carlton v. Woods, 8 Poster, 390, where it is held that if entire stock of goods be sold at one and the same time, but each article for a separate and agreed value, the contract of sale is divisible; and if the sale of some article be prohib- ited by law, the sale of the others will nevertheless be enforced as legal, in an action for goods sold and delivered. Robinson v. Bland, 3 Burr. 1077; Widoe V. Webb, 20 Ohio St. 431, 637 ; Hoyt v. Macon, 3 Col. 508. " Robinson v. Bland, 3 Burr. 1077 ; Hanauer v. Doane, 13 Wall. 342. In Widoe V. Webb, 20 Oliio St. 431, there was action on a note given in settlement of an account of wbich some of the items were for intoxicating liquors sold in violation of law. Scott, C. J., said : " With respect to the items of the plaintiff's account which were unconnected with the illegal sales, he might well have main- tained an action on the original contracts of sale, even after the giving of this note. For being utterly void it discharged none of the just indebtedness of the defendant. But he chose to sue upon the note, which was prima facie evidence ©f indebtedness to the extent of the whole sum promised to be paid, and thus attempted to throw upon the defendant the burden of showing how much of it was given upon an illegal consideration, and upon the court the. task of separat- ing the sound from the unsound. If this effort should result in his losing what was justly due him, we can but repeat what was said in a similar case : ' It is but a reasonable punishment for his including with his just due that which he had no right to take.' " Brigham v. Potter, 14 Gray, 523; Perkins v. C'ummings, 2 Gray, 2J8; Clark v. Ricker, 14 N. H. 44; Carlton v. Bailey, 7 Foster, 334; Carl- ton v. Woods, 8 Foster, 390. RENEWAL BILLS AND NOTES. 179 there may be recovery on the bill or note to the extent of the distinctly severable and valid consideration.^ Where the legal part of the consideration exceeds the amount of the note, though another part of the consideration be illegal, the note will be valid.^ And it has been held that where a bill is given in renewal of other bills, one of which was upon an illegal consideration, it would be valid as to the amount which the legal bills evidenced, and void as to the rest for want of consideration.^ SECTION YII. RENEWAL BILLS AND NOTES. HOW ELLEGALITT MAY BE PUEQED. § 205. As to bills and notes given in renewal. — If the consideration of the original bill or note be illegal, a renewal of it will be open to the same objection and defense;^ and if the original instrument was obtained by fraud, a renewal of it by the original parties without knowledge of the fraud, would stand upon the same footing.^ But if at the time the renewal was executed the parties signing knew of the fraud in the original, they will be regarded as purging the contract of the fraud, and cannot then plead it.' So if the maker of a note held by an indorsee who knew that the consideration between the maker and the payee had failed when he took it, executes to him a new note, it has been held to be a waiver of the defense, and the payee of the new note can recover.'' Where a note secured by mortgage or deed of trust is re- newed, the mortgage is valid as a security for the renewal ' Clopton V. Elkin, 49 Miss. 95. See Guild v. Belcher, 119 Mass. 257, as to recovery against partners, ^Yllere one partner is not privy to the entire considera- tion. , ^ Warren v. Chapman, 105 Mass. 87. ' Doty V. Knox Co. Bank, 16 Ohio, N. S. 133. ' Sawyer v. Wiswell, 9 Allen, 39 ; Holden v. Cosgrove, 13 Gray, 216 ; Scud- der V. Thomas, 34 Ga. 239. ' Sawyer v. Wiswell, 9 Allen, 39. • Sawyer v. Wiswell, 9 Allen, 39. ' Gill t. Morris, 11 Heiskell, 614. 180 CONSIDEEATION OF HBGOTIABLB INSTEUMENTS. note,^ and if tlie renewal note be a forgery it does not dis- charge the original, although the original was surrendered up, nor is the indorser of the original discharged, his liability having been fixed by notice.^ " When a dealer at bank pays off a note by renewal, the debt is the same ; the debt remains unpaid, the credit is extended." ^ And as a general rule the surrender of the pre-existing note does not discharge it."* § 206. If a note or bill be given for a consideration which is in part illegal, a new note for the same, or in renewal of the first, is equally void.^ But a new note for that part of the consideration which is legal is good and valid. And if several new notes are given for the old one, some of the new ones may be taken to be for the legal part, and so be valid^ especially if they are only adequate to this part, or if the de- duction be otherwise favored by circumstances.^ § 207. In what way illegal consideration may he purged. — When there is such illegality in the consideration of a bill or note which vitiates it in all hands there are several ways in which it may be purged and a new security become valid. Thus, Firstly, if there was usury in the consideration, and it is either paid up or is remitted, there is no doubt that if a new bill or note were given, and the usury in the original instrument excluded, such new bill or note would be valid.^ Secondly. If the usurious or otherwise invalid security had been acquired by a hona fide holder for value, and without notice, a new bill or note executed by the drawer, maker, ' Aillet V. Woods, 34 La. Ann. 19:3 ; McNamara v. Condon, 1 ilacArthur, 364. ' Ritter v. Singmaster, 73 Penn. St. 400. ' Farmers' Bank v. Mutual Ass. Soc'y, 4 Leigh, 88 ; Moses v. Trice, 31 Grat. 556 ; Tardy v. Boyd, 36 Grat. 638. ' See Vol. II, § 1366. ' 1 Parsons N. & B. 317; Chapman v. Black, 3 B. & Aid. 588; Wynne v. Cal- lander, 1 Russ. 393 ; Preston v. Jackson, 3 Stark. 237. ° Hubner v. Richardson, Bayley on Bills, 362 ; Crookshank v. Rose, 5 C. & P. 19. ' DeWolf V. Johnson, 10 Wheat, 367; Hammond v. Hopping, 13 Wend. 505; Barnes v. Hedley, 3 Taunt. 184 ; 1 C;;mp. 157 ; 3 Parsons N. & B. 420 ; Bayley on Bills, 301. BENEWAL BILLS AND NOTES. 181 acceptor, or other party bound upon the first to such hona_ Jtde holder, would be valid.^ Thirdly. If the usurious or otherwise invalid security is lifted, and a third party, a stranger in whole or part to the original security, intervenes, and for motives peculiar to himself and unaffected by the illegal consideration, supplants it by a new security made by himself to the original payee, it would be valid,^ and it mat- ters not that the principal in the original becomes a surety upon the new security.^ If the new party be released, and the old contract is revived, the novation is rescinded, and usury may be pleaded.* Fourthly. If A. makes a usurious or otherwise illegal agreement with B., and gives a bill or note to him for the amount, and then makes a new bill or note to C, to whom B. is indebted, the new note is valid.^ Fifthly. It has also been held that if A. make a usuri- ous or otherwise illegal note to B., and afterward supplant it by the joint note of himself and C. to B., the joint note is valid ; " and Comyn says, " Where third persons are mixed up with the new transaction, the courts regard it with a favorable eye." ' ' Torbett v. Worthy, 1 Heiskell, 107; Calvert v. Williams, 64 N. G. 168; Drake v. Chandler, 18 Grat. 913 ; Cuthbert v. Haley, 8 T. R. 390. " Stone V. Smith, 6 Mumford, 541 ; Law's Ex'r v. Sutherland, 5 Grat. 357 ; Drake V. Chandler, 18 Grat. 913; Wales t. Webb, 5 Conn. 154; Windham v. Doles, 59 Ga. 366. ' Drake v. Chandler, 18 Grat. 909. * Archer v. McCray, 59 Ga. 547. ■ ' Regina v. Sewel, 7 Mod. 118; Drake v. Chandler, 18 Grat. 913; Sherwood V. Archer, 17 N. Y. S. C. (10 Hun), 73. ° Hulme V. Turner, 4 Esp. N. P. C. 111. In this case the payee of a note given for a usurious consideration arrested the maker, and to procure his libera- tion a third person joined the maker of the note in another note for the amount of the debt ; and the chief justice said he was clearly of opinion the considera- tion of the first note could not be questioned in an action on the second, unless it could be shown that it was a colorable shift to evade the statute, devised when the money was originally lent and the first note granted. See Drake v. Chandler, 18 Grat. 913. We have seen it decided in a nisi prius Virginia case, that the liberation of the party was the consideration of the new joint note, and that only upon that ground could the decision of Hulme v. Turner be sustained. In Drake V. Chandler there is no allusion to this view. ' Comyn on Usury, 186. 182 CONSIDERATION OF NEGOTIABLE INSTRUMENTS. Sixthly. It has also been held that if a joint note be illegal, the note of one joint promissor, with a new party as surety thereon, would be valid.^ Seventhly. If the party principal in the original and in- valid security executes a new one, leaving off a surety upon the first — or adding a surety where there was none upon the first — or substituting a new surety for one that was upon the first — in all these cases there would still be a straight and unbroken line of obligation from the principal to the payee^ And we should say that the new security was a mere renewal of the first, and would be invalid.'^ Eighthly. It has been held that where an indorser upon a note void for usury gives his own note for the amount ap- parently due, it is tainted with the original usury and in- valid.^ But if the original note were not usurious, usury in the renewal note would not prevent recovery of the amount due on the first, and an indorser of the first by indorsing the second, waives the necessity of protest and notice thereon in order to charge him.* ' Gresham v. Morrow, 40 Ga. 487. In this case it was held that where one who held the note of two joint promissors, given Jfor slaves, and in full satisfac- tion thereof, took the note of one joint promissor, with a stranger as his security, it was a novation of the debt ; and the consideration of the new note was not slaves, but the satisfaction of the first note. ' Campbell v. Sloan, 62 Penn. St. 481. = First National Bank v. Plankinton, 37 Wis. 177. ' Leary v. Miller, 61 N. Y. 490. BOOK II. WHO MAY BE PAETIBS. CHAPTER VIII. PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. § 208. It was once thought that none but merchants could be parties to bills and notes, as they are purely mer- cantile instruments, but this notion long since became obso- lete.^ And it is well settled that any person laboring under no personal or political disability may be a party to any ne- gotiable contract. We shall first speak of those who are partially or wholly disqualified by such disability, and who are (I) lunatics, (II) alien enemies, (III) infants, (IV) mar- ried women, (V) persons under guardianship, (VI) bank- rupts. We shall then speak of those who may be parties, other than private individuals, and who are (I) personal representatives, (II) guardians, (III) trustees who may be included under the head of fiduciaries — and (IV) agents, (V) copartnership firms, (VI) private corporations, (VII) public corporations, and (VIII) government. SECTION I. LUNATICS, IMBECILES AND DRUNKARDS. § 209. Every person is presumed to be of sane mind until the contrary be shown by him who asserts it ; ^ and insanity or imbecility cannot in England be shown under a general ' Chitty on Bills [*15], 20. ' Jackson t. King, 4 Cow. 207; Jackson v. Van Dusen, 5 Johnd. 144 ; Edwards on Bills, 64 ; 1 Parsons N. & B. 150. 184 PERSONS PAETIALLY OK WHOLLY DISQUALIFIED. plea that the defendant did not execute the bill, note, or other instrument declared on, but must be specially pleaded.^ The earlier authorities of the English law held that a man should not be allowed to stultify himself by alleging his own lunacy or imbecility ; ^ but such a doctrine sounds more like the gibberish of a lunatic than like the decree of a humane and enlightened lawgiver. The maxim of the civil law, '■^furiosus nullum negotium gerere potest, quia non intelligit quid agit^'' expresses the sense of modern juris- prudence on the subject. And it may now be regarded as a general rule of universal law, that the contracts of a lunatic, idiot, or other person non compos mentis, from age or personal infirmity, are uttei'ly void.'' § 210. Prof. Parsons qualifies the doctrine stated ia the text, by observing, that " possibly this defense (of insanity, imbecility, or aberration), to be effectual must go far enough to show that this defect of mind was known to the other contracting party."* And this view has obtained in a number of cases in England and the United States. Thus it has been held no defense to an action for labor done and goods sold, that the defendant was of unsound mind, unless the plaintifl!' knew the fact, or took advantage of it.'' But we can see no philosophy in these rulings. If the defendant had no faculties of discretion, and Avere in fact deranged, the mere circumstance that, for the time being, he so deported himself as to conceal his lunacy or imbecility, cannot alter his right to be protected against his own misfortune. And though honest persons may be ignorant of his condition, that is their misfortune, and they should not be allowed to 'Harrison v. Richardson, 1 Mood. & Rob. 504; Byles (Sbarswood's ed.) [•60], 150. ^ Beverley's Case, 4 Rep. 126; Stroud v. Marsliall, Cro. Eliz. 398; 1 Parsons on Contracts, 383. " Edwards on Bills, 63; Story on Bills, § 106; Story's Eq. Juris. § 233; Byles on Bills (Sliarswood's ed.) [*60], 150 ; see 1 Parsons N. & B. 149. * 1 Parsons N. & B. 149, 150. » Molton V. Camroux, 4 Exch. 17 ; Brown v. Todrell, 3 Car. & P. 30 ; Moody & M. 105; Beals v. Shee, 10 Penn. St. 56; Byles (Sharswood's ed.) [61], 151. LUNATICS, IMBECILES AND DEDNKAEDS. 185 throw it upon one already helpless.^ " It is a hard case either way, but it is very important that courts of justice should afford protection to those individuals who are unfortunately unable to be their own guardians," is the language of Lord Tenterden, C, J., in a case where a note, drawn, in an unu- sual form, by an imbecile, was held void in the hands of an innocent indorsee.^ And no matter how perfect the note may be in form, it would be void in the hands of every per- son, however innocent, as against the imbecile or lunatic ; ^ but in this view, so obviously reasonable and just, the au- thorities are not entirely concurrent. § 211. Mere weakness of mind, not amounting to im- becility or insanity — mere immaturity of reason, or want of experience and skill in business, is no ground of defense either in law or equity, provided no fraud has been practiced on the party.* But if the weakness of mind be so great as to incapacitate the party to guard against imposition and undue influence, it will suffice to vacate his contracts.*^ § 212. In respect to necessaries an exception arises. In this regard an imbecile stands upon the footing of an infant. And his executed contracts for necessaries, made while he was temporarily or apparently sane, with a party acting in entire good faith, would be enforced.* And if a bill or note were executed by him for necessaries under such circum- stances, it would doubtless be valid, at least to the extent of their actual and proven value.'' A lunatic has been held ' Van Patton v. Beals, 46 Iowa, 63. = Sentance v. Poole, 3 Car. & P. (1827) ; Chitty on Bills (13 Am. ed.) [*18]_ 24 ; Thomson on Bills (Wilson's ed.) 455. ° Seaver v. Phelps, 11 Pick. 304, where it was held that an imbecile could not pledge a note, although the pledgee were entirely ignorant of his condition, and innocent of fraud. Van Patton t. Beals, 46 Iowa, 63. * Stewart V. Lispenard, 26 Wend. 399; Farnum v. Brooks, 9 Pick. 213; Os- mond V. Fitzroy, 3 P. Wms. 129; Lewis v. Pead, 1 Ves. Jr. 19. ' Johnson v. Chadwell, 8 Humph. 145. ° McCullis V. Bartlett, 8 N. H. 569 ; La Rue v. Gilkyson, 4 Penn. St 375 ; Richardson v. Strong, 13 Ired. 106. ' 1 Parsons N. & B. 149 ; Van Patton v. Marks, 46 Iowa, 63. 180 PEESONS PARTIALLY OR WHOLLY DISQUALIFIED. bound for medical services rendered his wife ; ^ and in En- gland, where a nobleman ordered carriages suitable to his rank, and the coachmaker supplied them bona fide, and they were actually used, it was held that an action was maintain- able on the contract, notwithstanding there had been an in- quisition of lunacy finding him to be of unsound mind at the time the carriages were ordered.^ § 213. In the United States inquisitions of lunacy, under statutes providing for the appointment of guardians over persons of unsound mind, have been frequently regarded as conclusive evidence of lunacy as against all persons.^ But other authorities hold the inquisition conclusive evidence only as against the parties to it ; and permit others to rebut it by clear evidence.* And this seems to us the best view.* In England, the inquisition is only presumptive evidence of lunacy.^ Before office found, the acts of a lunatic have been ' Pearl v. McDowell, 3 J. J. Marsh, 658 ; Fitzgerald v. Reed, 9 Smeed & M. 94. ■' Baxter v. Earl of Portsmouth, 7 Dow. & Ry. 614 ; 3 Car. & P. 178. In Dane V. Kirkall, 8 C. & P. 679, it was held that a lunatic was bound by agreement for use and occupation of a house, although not necessary for her, it not appearing that the plaintiff knew she was a lunatic. ' Leonard v. Leonard, 14 Pick. 380 ; Wadsworth v. Sherman, 14 Barb. 169 ; Fitzhugh V. Wilcox, 13 Barb. 335. * Den V. Clarke, 5 Hals. 117; Rogers v. Walker, 6 Penn. St. 371; Edwards on Bills, 64. ' Hicks V. Marshall, 15 N. T. S. C. 338 (1876). In this case suit was brought against the maker of a note by a honafide holder for value without notice of any defect. Proceedings upon an inquisition of lunacy, had after making of the note and bringing of the suit, were given on evidence, and the defendant de- clared to be of unsound mind when he made the note. It was held that the in- quisition established prima facie the insanity of the defendant at the time he made the note, and that in order to recover, the plaintiffs must show either that he was sane at the time, or that he had received such a consideration for the note, that justice and equity required it to be paid out of his estate. In Osterhout v. Shoemaker, 3 Hill, 516, Bronson, J., says: "I see no princi- ple upon which the inquisition taken upon a commission of lunacy can be given in evidence to defeat the rights of third persons who wore strangers to the pro- ceedings. * * But it seems to be settled that such evidence is admissi- ble, though not conclusive." See also Hart v. Deamer, 6 Wend. 497; Goodall v. Harrington, 3 N. Y. S. C. 345 ; Hoyt v. Adee, 3 Lansing, 173. " Sergeson v. Sealey, 3 Atk. 413; Faulder v. Silk, 3 Camp. 136. LUNATICS, IMBECILES AISD DRUNKARDS. 187 said to be voidable only ; ^ afterward void.'* But this dis- tinction would not extend so far as to prevent the contract of a lunatic from being ratified and confirmed after his restoration to sanity.^ And if after restoration, he continues to receive benefits under, instead of disaffirming the contract, it will be deemed a ratification.* § 214. Drunkenness is a species of mental aberration, produced by intoxicating stimulants. And if a person be- come so drunk as to be deprived of understanding and reason, there is no doubt that, while in such condition, he has no ca- pacity to enter into a contract. And if he should sign a negotiable instrument, either as maker, drawer, indorser, or acceptor, it would certainly be void as to all parties having notice of the condition in which he signed it.'^ If the drunk- enness were so complete as to suspend all rational thought, the better opinion is that any instrument signed by the party would be utterly void even in the hands of a hona fide holder without notice, for, although it may have been the party's own fault that such an aberration of mind was- pro- duced, when produced, it suspended for the time being his capacity to consent, which is the first essential of a contract.^ " It is just the same," says Alderson, B., " as if the defendant had written his name on the bill in his sleep in a state of somnambulism." ' But it has been thought and held, that even when the drunkenness was complete, a bill or note then signed would be valid in the hands of a bona fide holder without notice.^ If the party were fully aware of what he ' Jackson v. Gumaer, 3 Cow. 553. " Pearl v. McDowell, 3 J. J. Marsh. 658; Edwards on Bills, 64. ' 1 Parsons N. & B. 151. * Arnold v. Richmond Iron Works, 1 Gray, 434 ; but see Berkeley v. Cannon, 3 Rich. (Law) 136. ' Gore V. Gibson, 13 M. & W. 623 ; Pitt v. Smith, 3 Camp. 33 ; Molton t. Cam- rony, 3 Exch. 487 ; 4 Exch. 17 ; Wigglesworth v. Steers, 1 Hening & Mun. 70 ; Jenners v. Howard, 6 Blackf. 340 ; Clark v. Caldwell, 6 Watts, 139; 1 Parsons on Contracts, 383-84. ' 1 Parsons N. & B. 151. ' Gore v. Gibson, supra. ' State Bank v. McCoy, 69 Penn. St. 304 ; Johnson v. Medlicott, 3 P. Wms. 130 ; Thomson on Bills (Wilson's ed.) 63 ; Chitty on Bills (13 Am. ed.) [*18], 34. 188 PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. was doing when he signed the paper it would clearly be binding, as we think, in the hands of a lona fide holder.^ Olearly, " the merriment of a cheerful cup, which rather revives the spirits than stupefies the reason, is no hindrance to the contracting of just obligations." ^ § 215. If the party made himself drunk for the purpose of entering into agreements and then avoiding them, the fraudulent intent antedating his drunkenness would render it incompetent for him to avail of the defense.^ Drunkenness, when relied upon as a defense, must be specially pleaded.* If the party buy goods when drunk, and keep them when sober, he estops himself, and cannot then plead his drunkenness.^ Where a note based on insufficient consideration was obtained from a person under the influence of liquor at the time of its execution, and enfeebled in body and mind by Jong-continued disease and drunkenness, it was held in Alabama that a presumption of fraud arises, which must be countervailed by proof of fair consideration, and fair dealing on the part of the holder seeking to enforce pay- ment.^ SECTIO:^ II. ALIENS AND ALIEN ENEMIES. § 216. The mere fact that a person is an alien and a resi- dent of a foreign country in nowise impairs the right of ' In Miller v. Pinley, 26 Mich. 349, it was claimed that a father who signed a note already signed by his son, while in such a state of drunkenness, procured by the payee, that he was not responsible by his acts. The evidence for the plaintiff tended to show that he was fully aware of the transaction between his son and the payee, and took some part in it. The evidence of the son did not indicate his extreme intoxication ; and the father himself seemed to recollect signing the note. Campbell, J., said : " The defense rests upon the ground of fraud, and not of illegality, and while if the old man's story is true, the note would be voidable as against the payee, it would not be a nullity as to all per- sons." ' Puffendorf, Book 3, ch. 6, § 4 ; Story on Contracts, § 27 ; Cook v. Clay- worth, 18 Vesey, 12, Sumner's note. " 1 Parsons N. & B. 151 ; 1 Parsons on Contracts, 384, 385. * Gore V. Gibson, 13 M. & W. 633 ; Byles on Bills (Sharswood's ed.) [*61], 152. ' Gore V. Gibson, 13 M. & W. 623. ' Holland v. Barnes, 53 Ala. 83. ALIENS AND ALIEN ENEMIES. 18J> the citizens of another country to contract with him, or his right to contract with them. On the contrary, commercial intercourse between different nations, under relations of amity with each other, are to be favored and encouraged. But if war should break out between two countries, it at once interposes a barrier to, and an interdiction of, all com- mercial correspondence, intercourse and dealing between the citizens of the two countries. The hostile countries become sealed as against each other; and both for the purpose of identifying the citizen thoroughly and emphatically with the policy and interests of his country, and of preventing com- munications to the enemy which might be damaging in their character, the law of nations absolutely prohibits all inter- course between the citizens of belligerent countries, and pronounces all contracts between them utterly void.^ Such contracts are not merely voidable, but db origine void, and incapable of being enforced or confirmed.^ And the rule applies not only to citizens and native subjects, but as well to all persons domiciled in the respective countries.^ This disability of alien enemies to contract does not rest upon any peculiarity of English or American law, but upon the universal public law of nations, as stated and approved by the most eminent writers, such as Grotius, Puffendorf, Vattel, Bynkershoek ; and in the present age, Wheaton, Story, Kent, Parsons, and others.* § 217. It results from these principles, that if the United States and the United Kingdom of Great Britain, Scotland and Ireland were at war, a citizen of the United Kingdom ' Qriswold v. Waddington, 19 Johns. 438, Chancellor Kent saying of this in- terdiction: " It reaches to all interchange or removal of property, to all negotia- tion and contracts, to all communication, to all locomotive intercourse, to a state of utter seclusion, to any intercourse but one of open hostility, to any meeting but in actual combat." The Julia, 8 Cranch, 131. " Griswold v. Waddington, 16 Johns. 438 ; Thomson on Bills, 73 ; Story on Notes, § 94. = McConnell v. Heetor, 1 Bos. & P. 113 ; Roberts v. Hardy, 3 Maule & Sel. 533. ' Wheaton's International Law, 556; Story on Bills, § 99; 1 Parsons N. & B. 153; 1 Kent Com. 67. 190 PERSON^ PARTIALLY OR WHOLLY DISQUALIFIED could not legally draw a bill of exchange upon a citizen of the United States ; ^ nor could a citizen of the United States draw a bill upon a citizen of the United Kingdom.^ This latter proposition of law has been denied in one of the cir- cuit courts of the United States, and in Kentucky ; ® but the weight of authority, as well as the clearly defined principles of international law, which have been already stated, over- whelmingly sustain the text. And it has been observed, in respect to the circuit court decision above referred to, that " even that case contains special circumstances not exist- ing in the present case. The bill in that case was drawn ' Willison V. Patteson, 7 Taunt. 439; 1 Moore, 133 (1817). In this case, a British subject, resident in England, had in his hands funds of an alien enemy, who drew on him a bill payable to the drawer's order, and indorsed it to the plaintiif, an English-born subject resident in hostile territory. Held, that the indorsee could not recover. In Moon v. Poster, decided by Chase, C. J., in U. S. Circuit Court at Rich- mond, Va., in 1868 (Chase's decisions reported by Johnson, p. 333), it appeared that during the late Confederate war the drawer at Winslow, N. C, drew on a drawee at Portsmouth, Va., the latter place beiag within the United States military lines. The chief justice instructed the jury that "if they should find that AVinslow was not, at the time of making and issuing the draft, in the occu- pation or control of the national forces, then the draft in controversy, being an act of prohibited commercial intercourse, was not valid, negotiable paper." Cited in 19 Grat. 433. Billgerry v. Branch, 19 Grat. 393, 433; Woods v. Wilder, 43 N. Y. 161; Wheaton on Inter. Law, § 317; 1 Kent Com. 67; Story on Bills, § 100; Thomson on Bills, 73; 1 Parsons N, & B. 153; Tarleton v. Southern Bank, 49 Ala. 339. = Ibid. = United States v. Barker, 1 Paine's C. C. 156 (1830). On the 2d of July, 1814, a bill of exchange was drawn by a citizen of the United States on a British subject in Liverpool, in favor of the United States, which was then at war with Great Britain. It was held a lawful transaction, and Livingston, J., said: "The opinion of the court, then, is, tliat the plaintiff, by drawing the bill in question, violated neither the laws of nations nor any municipal regulation of his own country; that he did an act perfectly innocent, if not meritorious, and which has too long received the sanction of public opinion and general usage to render it necessary or' proper to be checked by the interposition of a court of justice, which could not be done without sacrificing the interest of our innocent and •unsuspecting merchants, to gratify tlie cupidity of those w-ho may since have been advised that the transaction was unlawful, and may be desirous of taking advantage of it." Followed and approved in Haggard v. Conkwright, 7 Bush (Ky.), 16 (1869). ALIENS AND ALIEN ENEMIES. 191 here by a citizen of tlie United States against funds which he had in England, and was indorsed to the United States Government, and prosecuted in its name and behalf" ^ It was not upon these special circumstances that the decision turned, but they suggest an exception to the general rule in favor of the Government, which, upon considerations of public policy, may govern itself differently from its subjects. § 218. In like manner, the citizen of a country cannot ac- cept a bill drawn by an alien enemy — that is, a citizen of a country at war with his own.^ Nor indorse a bill or note to such alien enemy, nor be indorsee of one from him.^ Nor can he execute a note to such alien enemy, nor be payee of a note made by him;* though it would seem that if the note were given by an agent acting under authority given before the war, and in renewal of a note made before the war, it would be valid.' In the late war between the Confederate States and the United States, many transactions between parties on opposite sides of the hostile line occurred, and the principle that for- bids communication between alien enemies has been regarded by the courts of the United States, and of the several States, as applicable to them. For while the Confederate States ■ were short lived, for the time being they waged war like an independent nation, and were accorded belligerent rights." § 219. The subject of a country at war with another, cannot acquire the rights of an indorsee of a bill drawn by an alien enemy upon a citizen of his own country, provided he knew at the time of the state of war between them ; for by receiving a bill which is enemy's property, he makes him- ' Woods V. Wilder, 43 N. Y. 164, Rapallo, J, ' Ibid. ' Billgerry v. Branch, 19 Grat. 393. * Ibid. McVeigh v. Bank of Old Dominion, 26 Grat. 785. ' McVeigh v. Bank of the Old Dominion, 36 Grat. 785. ' Billgerry V. Branch, 19 Grat. 393; Moon v. Foster, Chief Justice Chase's decision, cited in 19 Grat. 483; Chase's Decisions, 233; Wood v. Wilder, 43 N". Y. 164; Ward V. Smith, 7 Wall. 447; The Prize Cases, 3 Black (S. C.) 635; The Venice, 2 Wall. 258 ; The Hampton, 5 Wall. 372 ; The William Bagaley, 5 Wall. 877 ; Hanger v. Abbott, 6 Wall. 533 ; Tarleton v. Southern Bank, 49 Ala. 229 ; McVeigh v. Bank of Old Dominion, 26 Grat. 785. 192 PERSONS PABTIALLT OR WHOLLY DISQUALiriBD. self an instrument to enaWe such enemy to sue in the courts of his own country, and either encourages, or participates in that intercourse and correspondence which the laws of na- tions interdict.^ If it does not appear that the indorsee knew that the instrument was invalid as between the orig- inal parties on account of the existence of war between their respective countries, they would be liable to him upon it ; but, as a general rule, the place where the bill or note is dated, and the names, or address of the parties thereon noted, will indicate its true nature ; and a declaration of war is always matter of such immediate and general notoriety that no one can long remain ignorant of it.^ It has been held, however, that an assignment of a certificate of deposit issued by a bank within the lines of a hostile government, is valid.* § 220. Although a bill or note draAvn, indorsed or ac- cepted in favor of an alien enemy, may not be valid as be- tween the original parties, yet if it be drawn upon the citizen of a hostile country by an alien enemy, in favor of a neutral, and no illegal use of it were intended or participated in, it would be valid in the hands of the neutral as against the drawer, and also as against the drawee if he accepted. And the same rule would apply to indorsements to neutrals of bills or notes executed between citizens of countries at war ; and to the drawing of bills, making of notes, and indorsing of bills or notes by neutrals in favor of fellow-subjects or other neutrals ; for a state of war does not suspend commerce between neutrals.* § 221. Except ions to general rule. — There are some excep- tions to the general interdiction of intercourse between alien enemies. Thus, if a prisoner of war should draw a bill on a fellow-citizen in his own country, or should make or indorse a note, that bill or note, whether payable or indorsed to an alien enemy, would be valid if it were drawn, made, or in- ' Thomson on Bills, 74. "- Thomson on Bills, 74. " Morrison y. Lovell, 4 Hagan (West. Ya.) 346. ' Story on Bills, S§ 103, 104; Story on Notes, §§ 98, 99; Edwards on Bills, 74. ALIENS AND ALIEN ENEMIES. 193 dorsed for the purpose of obtaining necessary articles of sub- sistence or comfort.^ So, if it were drawn, made, or indorsed for the ransom of a captured ship,^ or for the repairs of a ship in an enemy's country, protected by cartel between the belligerents.^ And such instruments might be sued upon on the return of peace. But it would have to appear affirma- tively that the consideration of the bill or note exempted it from the general rule. After the expiration of a temporary act prohibiting the payment of bills drawn during a state of war, under a penalty, a mere verbal promise to pay such bills would be valid.* § 222. The effect of war between two countries is to suspend at once all contracts between the citizens of those countries which require communication between them.® But if an alien enemy has an agent in the hostile country, war does not revoke the agency ; and the agent may still act for, receive, and pay out money for his principal ; give or receive notice of dishonor of his commercial paper, and represent his principal in all transactions not contrary to the policy or in- terests of the government wherein the agent resides,^ that is to say, provided they can be conducted without intercourse or communication between the citizens or subjects of the con- tending powers — such as agencies to collect and preserve, but not to transmit money or property.'^ But it seems they ' Daiibuz V. Morehead, 6 Taunt. 333; Edwards on Bills, 74. ^ Rioord v. Bettenham, 3 Burr, 1734 ; Cornu v. Blackburne, 3 Doug. 641 ; Yates V. Hall, 1 T. R. 73. =■ Patta V. Bell, 8 T. R. 548; Sackley v. Furse, 15 Johns. 338; Edwards on Bills, 74, 75; Story on Notes, § 97; Story on Bills, § 102. ■" Duhammel v. Pickering, 3 Stark. 90. " Griswold v. Waddington,' 16 Johns. 438. "Wardv. Smitli, 7 Wall. 447; Dennistoun v. Imbrie, Wash. C. C. 396; 3 Manhattan Ins. Co. v. Warwick, 30 Grat. 614; Hale v. Wall, 22 Grat. 424; Monseaux V. Urquhart, 19 La. 485; Clarke v. Morey, 10 Johns. 70; Fisher v. Krutz, 9 Kans. 510; Hubbard v. Matthews, 54 N. Y. 48; Maloney v. Stephens, 11 Heiskell, 738. ' Small's Adm'r v. Lumpkin, 88 Grat. 835. See cases in preceding note. Vol. I.— 13 194 PEESONS PARTIALLY OR WHOLLY DISQUALIFIED. must be created before the war begins.^ Of the character described is an agency to receive notice of protest of com- mercial paper.^ SECTION" III. ESTFAIfTS. § 223. In the next place as to infants. Persons under twenty-one years of age are minors, or infants as they are more generally termed, and contracts made by them have been divided into three classes : First, void contracts, which are those clearly to the infant's disadvantage — as, for in- stance, a bond made with a penalty ; second, voidable con- tracts, which are those which may or may not be for his benefit, according to circumstances — as, for example, a lease of his lands rendering rent ; and third, valid contracts, which are such as are entered into for necessaries.^ And by neces- saries are meant those things which are needed by tlie infant, and are suited to his means and rank in life. But this distinction, as to void and voidable contracts, is now regarded as practically obsolete ; all the contracts of an infant, not in themselves illegal, being capable of ratification by him after he has attained his majority, and, therefore, be- ing voidable only.. For if absolutely void, they would be in- capable of ratification.* ' U. S. V. Lapine, 17 Wall. 603; IT. S. v. Grossmayer, Wall. 72; Small's Adm'r v. Lumpkins, 28 Grat. 835 ; Hubbard v. Matthews, 54 N. T. 44. " Hubbard v. Matthews, 54 N. T. 44, ■ Story on Notes, § 77. * 1 Parsons ou Contracts, 295; Byles on Bills (Sharswood's ed.) [*o9] 145; Edwards on Bills, 65 ; 3 Kent Com. [*234], Lect. 31 ; Bingham on Infancy, 45. Chancellor Kent, in his Commentaries, says (see 2 Kent's Com. Lect. 31): '■ Ft is lield that a negotiable note given by an infant, even for necessaries, is, void; and his acceptance of a bill of exchange is void ; and a bond with a penalty, though given for necessaries, is void. It must be admitted, howevei-, that the tendency of the modern decisions is in favor of the reasonableness and policy of a very liberal extension of the rule, that the acts and contracts of infants should INFANTS. 195 § 224. For necessaries an infant may undoubtedly bind himself, and the better opinion is that he may execute a note not negotiable for the amount, the consideration of which might be inquired into, and his protection from imposition insured — he being bound not absolutely for the amount of the note, but only for the real value of the necessaries for which it was given.^ But it is denied by some of the authori- ties that an infant can execute any note whatever, of any binding force, even for necessaries.^ In England it has been held that an infant may execute a single bill (a bond with- out a penalty) for the exact sum due for necessaries ; but not a bond with a penalty, or carrying interest.^ An infant can- not bind himself for necessaries when he has a parent or guardian who supplies his wants ; * but when he has authority from his guardian or parent, he may purchase them and bind himself for them.' § 225. Negotiable paper signed by infants. — In respect to negotiable paper to which infants have signed their names as parties, it may be stated as a general principle, universally recognized wherever the common law prevails, than an infant cannot bind himself absolutely as drawer, indorser, acceptor, or maker of a bill of exchange or negotiable note.* In a case where the acceptor of a bill pleaded infancy, and it was be deemed voidable only, and subject to their election, when they become of age, either to affirm or disallow them. If their contracts were absolutely void, it would follow as a consequence that the contract could have no effect, and the party contracting with the infant would be equally discharged." Bee Earner v. Dipple, 31 Ohio St. 72; Reed v. Batchelder, 1 Mete. 559. ' 1 Parsons N. & B. 68. ■' Boucbell V. Clary, 3 Brev. 194; Chitty on Bills [*19], 26. = Russell V. Lee, 1 Lev. 86 ; Byles (Sharswood's ed.) [*57], 144 ; Chitty on Bills [*19], 26. ^ Angel V. McClellan, 16 Mass. 28; Guthrie v. Murphy, 4 Watts, 80. ' Rundel v. Keeler, 7 Watts, 237; Watson v. Heasel, 7 Id. 344. " Williamson v. Harrison, Holt, 339; Garth. 160; 3 Salk. 197 (1690). The Court said: " Here the infant was a trader, and the bill of exchange was drawn in the course of trade, and not for necessaries." Story on Notes, § 78; Edwards on Bills, 65. 196 PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. replied that it was given for necessaries, Lord Mansfield, C. J., said : " Did any one ever hear of an infant being liable as an acceptor of a bill of exchange ? The replication is non- sense, and ought to have been demurred to." ^ And although the tenor of the modern authorities is to liberalize the law on the subject of infancy, the doctrine is generally followed that an infant cannot be a party to a negotiable instrument — the reason assigned being, that otherwise, should it be trans- ferred to a bona fide holder for value, and without notice of the infancy, the infant, if bound at all, would be bound for the entire sum, and if inquiry were admitted into the con- sideration, the instrument would lose its character as nego- tiable paper.^ § 226. The views of this subject which strike us as the most reasonable may be stated as follows : If the payee of a note made by an infant were to sue him upon it as maker,, and he pleaded infancy, the payee might reply that it was executed for necessaries, and that such necessaries were rea- sonably worth the amount specified in the note. The burden of proof would rest upon the plaintiQ^ to show that the con- sideration was necessaries, and also to show their value ; and no more than the value proved could be recovered. And this view would apply whether the note were in form nego- tiable or not.'^ If the indorsee of the payee of such a note were to sue the indorser, the latter would, of course, be bound to him whether the maker were an infant or not ; for by indorse- ment he warrants the capacity of prior parties and the entire ' Williamson v. Watts, 1 Camp. 553. ^ Swasey v. Vanderheyden, 10 Johns. 33; Wamsley v. Lindenberger, 2 Rand. 478; McCrillis V. How, 3N. H. 348; Conn v. Coburn, 7 N. H. 3G8 ; McMinn v. Richmonds, Yerg. 9 ; Henderson v. Fox, 5 Ind. 489 ; Fenton v. White, 1 South. 100 ; Bouohell v. Clary, 3 Brev. 194 ; 1 Parsons N. & B. 69 ; Story on Notes, § 68 ; Story on Bills, § 84. ^See Earle v. Reed, 10 Mete. 387; DuBose v. Wheddon, 4 McCord, 221 (1827) ; Haines' Adm'r v. Tannant, 2 Hill (S. C.) 400 (1834) ; see Edwards on Bills, 65 ; and Kyd on Bills, 29. INFANTS. 197 validity of the paper.^ And were the indorsee to sue the maker, and he were to plead infancy, there seems to be no good reason why it might not be replied that the note was given for necessaries, and that they were worth the amount specified; and* that the indorsee, like the payee, should be entitled to recover upon proving the consideration to have been necessaries, and upon showing their value.^ The dis- tinction taken in some cases,^ that the payee may sue the infant as maker, but that an indorsee cannot do so, seems ex- tremely technical and unreasonable. If not absolutely void as to the payee, we cannot perceive why it should be so held as to an indorsee, who, while he could not stand upon a bet- ter footing than the indorser as against the infant, certainly should not be placed upon a worse ; for the payee must gen- erally have a better opportunity to know the fact of infancy than he. Nor can we see that holding the original consider- ation to be open to proof, upon infancy being shown, would damage the character of a negotiable note more than declar- ing it utterly void. Justice seems to require that the mere negotiable form of the paper should not destroy all validity ; and although it could not be said to be negotiable in the full sense of the term — protection to the infant — which is the sole object of the law — requires no more than that his infancy should shield him from all liability beyond the actual value of the necessa- ries furnished ; and justice to the holder demands that at ' See Chapter XXI, on Transfer by Indorsement. " This doctrine is intimated in DuBois v. Wheddon, 4 McCord, 331, by Chan- cellor Nott, who said : " I see no reason why he (an infant) may not be bound by a bond or a bill of exchange. It is not true that no inquiry can be made into the consideration. The statutes against usury and gaming are evei-y day set off as defenses to actions ou bills of exchange and negotiable notes, even in the hands of innocent indorsees." In Bradley v. Pratt, 33 Vt. 378, Redfield, J., favors this view ; but says it could not probably be recognized " without too great an infringement of the rules of law in regard to negotiable paper while current." » Earle v. Reed, 10 Mete. 387. 198 PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. least that should be given him.^ The Scotch law is entirely in harmony with these views.* § 227. Infant as payee and indorser. — An infant may undoubtedly be the payee of a bill or note, and may sue upon and enforce it, since it cannot be but for his benefit if the consideration thereof does not move from himself but from some third person, or if it be for a debt justly due to him." But whether or not an infant can personally receive payment is a different question. As a general rule payment should be made to his guardian, and if it be made to the in- fant personally, and be thereby dissipated and lost, the payer would not be discharged.* An infant may also indorse a bill or note made payable to him or order, so far at least as to enable the indorsee to recover against the drawer, acceptor or maker, who by undertaking to pay to him or to his order, are estopped to deny his capacity to order payment to be made to the indorsee.' And to this extent the infant's in- ' In a note to Byles on Bills [*59] 148, note 1, the learned American editor^ Judge Sharswood, says: '' A note may be valid as such, though not negotiable ; in other words, though it may be so circumstanced as to let in all inquiries as to its consideration in the hands even of a lona fide holder. So here, on proof that the maker is an infant, the negotiability of the note is at an end ; but it does not cease to be a note. It may be sued on by the holder in his own name. He stands in the shoes of the original payee, and can recover whatever he would have been entitled to recover. If the note is voidable, then without ratiScation it cannot be sued on at all. The holder, at most, must be subrogated to the rights of the original payee, in an action against the infant in the name of the payee, on a declaration founded on the original consideration. It is evident that the Kentucky case (Heeler v. Young, 1 Bibb, 519) can only be supported on this footing; and, contrary to its own syllabus, it really affirms that the note is valid as a note, though it is not a negotiable note." ^ Thomson on Bills (Wilson's ed.) " Warwick v. Bruce, 2 Maul. & S. 205; Holladay v. Atkinson, 5 Barn. & C. 501 ; Teed v. Elworth, 14 East, 210 ; Story on Notes, § 79 \ Story on Bills, § 85 ; Byles on Bills (Sharswood's ed.) [*60], 150; Chitty on Bills [*20], 28. " Phillips V. Paget, 2 Ark. 80. 'Nightingale v. Withington, 15 Mass. 273; Frasier v. Massey, 14 Ind. 352; Hardy v. Waters, 38 Me. 450 ; Grey v. Coopers, 3 Doug. Co (1782) ; Taylor v. Croker, 4 Esp. 187 (1803); Jones v. Darch, 4 Price, 800 (1817) ; Drayton v. Dale, 3 B. & C. 293 ; 2 Dow. & By. 534 (1823) ; Chitty on Bills [*20], 26-29 ; Story on Notes, § 80; Story on Bills, § 85; Thomson on Bills, 134, 135; Byles (Shars- wood's ed.) [*60], 149; Edwards, 246. INFANTS. 199 dorsement would be valid, even if made by his authorized agent or attorney.^ " It would be absurd," it has been said by Parker, C. J., " to allow one who has made a promise to pay to one who is an infant, or his order, to refuse to pay the money to one to whom the infant had ordered it to be paid, in direct violation of his promise." ^ And in respect to the drawer of a bill payable to an infant or order, Lord Mans- field said: "The drawer says, 'let anybody trust the payee on my credit.' " ^ § 228. The infant cannot, of course, be bound by his in- dorsement to pay the bill or note, and Story says : " The infant may indeed avoid it, and intercept the payment to the indorsee, or by giving notice to the antecedent parties of his avoidance, furnish to them a valid defense against the claim of the indorsee. But until he does so avoid it, the indorsement is to be deemed, in respect to such antecedent parties, as a good and valid transfer." ^ But ^vhatever might be the infant's right to rescind his contract as against those deriving title through him, it is clear that when they have parted with value for the instrument, prior parties who, by making it payable to the infant, have warranted his capacity to indorse it, cannot escape responsibility for such warranty. And thfey may consequently be compelled to pay the bill or note twice.^ The case would be different in respect to an indorsement by an infant himself an indorsee and not the payee.* § 229. An infant's indorsement is voidable, not absolutely void.'' And it has been thought that where he receives a full consideration for the transfer of property, such as a negoti- able bill or note, and makes a manual delivery of it, his right ■ Hardy v. Waters, 38 Me. 450. ' Nightingale v. Withiogton, supra. ' Grey v. Cooper, 3 Doug. 65. ' Story on Notes, § 80. ' Smith V. Marsack, 6 C. B. 488 ; 18 L. J. C. P. 65 (1848); see post, § 243, note 5, and ante, § 90; Taylor v. Croker, 4 Esp. 187. • See Story on Bills, § 85, p. 98 (Bennett's ed.), note 2. ' Goodsell V. Myers, 3 Wend. 479; Edwards on Bills, 245; contra, see 10 Johns. 33. 200 PEKSONS PAKTIALLY OR WHOLLY DISQUALIFIED. to rescind or avoid the contract is suspended until he be- comes of &sg} And then he is not allowed to disaffirm the contract unless he returns the consideration paid to him.^ We should say that he might disaffirm the contract and return the consideration at any time, provided it was not unreasonably delayed after he became of age.^ § 230. Ratification by adult of bills and notes executed when an infant. — The bill of exchange or promissory note of an infant is not absolutely void, but voidable only at his election.* And if, after reaching fidl age, the then adult ratify and confirm his bill or note executed while he was an . infant, whether it were framed so as to b)e negotiable or not, he will be bound to pay the instrument according to its terms. For by ratification the adult validates the instrument in all respects, and it becomes the same as if it had been exe- cuted by an adult.® The effect of the ratification, as stated by Shaw, C. J., is, " to ratify and confirm the contract, and give it the same legal effect as if the promisor had been of legal capacity to make the note when it was made."^ And consequently the bill or note may be sued upon, without any ' Koof V. Stafford, 7 Cow. 179 ; 9 Cow. 626. On the last hearing of this case it was held that the infant might avoid a sale of chattels while an infant, but not a sale of land. = Medbury v. Watrous, 7 Hill, 110. = See Bool v. Mis, 17 Wend. 119; 3 Kent Com. [='237], notes; Schouler's Domestic Relations, 546, as to personal property. * Cole V. Pennell, 2 Rand. 174; Wamsly v. Lindenberger, 3 Rand. 479; Wil- liams V. Moore, 11 M. & W. 256, Parke, B., saying: "The promise of an infant is not void in any case, unless the infant choses to plead his infancy." Byles (Sharswood's ed.) [*58], 145 ; Edwards on Bills, 65, 66. ° Id. ; Hunt v. Massey, 5 Barn. & Ad. 902. In this case, the drawer sued the acceptor of a bill. It appeared that the acceptor was an infant when he ac- cepted, but had ratified the bill after he reached full age. Taunton, J., said: " Where a voidable contract is made by a party under age, and ratified after he has attained full age, is it not usual to declare on the original promise? The first promise here was voidable only. As soon as it was ratified, it became bind- ing ab initio." West v. Penny, 16 Ala. 186; Edgerly v. Shaw, 5 Foster, 514; Lawson t. Lovejoy, 8 Greenl. 405 ; Reed v. Batchclder, 1 Mete. 559 ; Cheshire v. Barrett, 4 McCord, 341 ; Little v. Duncan, 9 Rich. 65 ; Goodsell v. Myers, 3 Wend. 479. • Reed v. Batchelder, 1 Mete. 559. INFANTS. 201 allegation of ratification — that being necessary to appear only in rebuttal of the plea of infancy, when pleaded,^ It was held in England at one time, and also in the United States, that if an action be brought on a contract made by an infant, a ratification, proved to have been made after action brought would not suffice ; ^ but this view has been sharply criti- cised, and is not tenable.* The ratification inures to the benefit of every subsequent holder.* § 231. What amounts to ratification. — Unless a written ratification be required by statute, a verbal ratification will be effectual.^ As to what words will amount to a ratification, a mere recognition that the debt existed, or contract was made, is not sufficient.^ No peculiar form of words is requi- site, but there must be a direct and explicit recognition of the contract, and words expressing or necessarily implying a promise to fulfill it. Thus, if the adult says, " I have not the money now, but when I return from my voyage I will settle with you," or, " 1 owe you, and will pay you when I return," it is sufficient.'' So if he promises to " remit in a short time," ^ or says, "all that is justly your due shall be paid,"* or de- clares his intention to pay the note, and authorizes an agent to pay it, though nothing is done.^" And the words, " I will pay the note as soon as I can make it, but not this year. I understand the holder is about to sue it, but she had better not," have been ^' held enough. ' Supra, notes 1 and 2. ' Thornton v. Illingworth, 2 Barn. & C. 824; Byles (Sharswood's ed.) ' 1 Parsons N. & B. 73; Byles (Sharswood's ed.) [*o8], 145, note 1. ' Reed v. Batchelder, 1 Mete. 559. ' Martin r. Mayo, 10 Mass. 137 ; West v. Penny, 16 Ala. 186 ; Reed v. Boshears, 4 Sneed, 118. « Thrupp V. Fielder, 2 Esp. 628 ; Robins v. Eaton, 10 N. H. 561 ; Benham v. Bishop, 9 Conn. 330 ; Whitney v. Dutch, 14 Mass. 460 ; Hale v. Gerrish, 8 N. H. 374 ; Chitty on Bills [*20], 27. ' Whitney v. Dutch, 14 Mass. 460. ' Hartley v. Wharton, 11 Ad, & El. 934. ' Wright t. Steele, 2 N. H 51. " Orvis V. Kimball, 3 N. H. 314. " Bobs V. Hansel, 2 Bailey, 114, but query ; 1 Parsons N. & B. 74. 202 PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. § 232. An admission by the adult, and the declaration that the party would get his pay, but accompanied by a re- fusal to give a note, would not amount to a ratification.' Nor would an admission, accompanied by a promise to en- deavor " to get my brother bound with me."^ Nor would the language, " I consider your claim worthy my attention, but not my first attention," ^ " I will have to pay I suppose, but I shall do so at my convenience." * Nor would a direc- tion in the adult's will, that his just debts be paid, apply to debts contracted in infancy.^ § 233. The promise of the adult must be made to the party with whom he contracted, or his authorized agent, in order to amount to ratification; and if made to a third party, it will be insufficient." " It results from the fact of the original contract not being binding on the infant, that the new promise must possess all the ingredients of a complete agreement, to enable the plaintiff to recover against the in- fant. Hence, as no agreement is complete until the minds of the contracting parties meet, the new promise, to be binding on the infant, must be made to the creditor in person, or to his agent. The new promise creates a new contract; and the old debt supplies the consideration." "^ And if it be coupled with a condition, as to pay " when able," ths plaintiff must show the happening of the contingency, but need not show that payment may be made without inconvenience.'^ If the promise be shown to have depended on any other condition, its fulfillment must be jDvoven.^ § 234. Mere part payment does not amount to ratification ' Hale V. Gerrisb, 3 N. H. 374. ' Ford v. Phillips, 1 Pick. 202. " Wilcox T. Koath, 13 Cone. 550. ■■ Dunlap v. Hale, 2 Jones, N. C. 38L ° Smith V. Mayo, 9 Mass. 63. • Goodsell V. Myers, 3 Wend. 479 ; Bigelow v. Grannis, 3 Hill, 150 ; Hoit v. Underbill, 9 N. H. 439 ; Reed v. Boshears, 4 Sneed, 118. ' Hodges V. Hunt, 33 Barb. 150, Paige, J. * Thompson v. Lay, 4 Pick. 48; Cole v. Saxby, 3 Esp. 139; Everson v. Car- penter, 17 Wend. 419. " lb. ; Proctor v. Sears, 4 Allen, 95; Chandler v. Cover, 33 Penn. St. 509. INFANTS. 203 by the adult.^ Nor does a submission to arbitration, unless it proceed to a decision that the adult must pay.* But ex- pressions of intention to abide by a former award, or accept- ing its benefits, would suffice.** And the infant's conduct may be such as to amount to ratification. Mere silence and failure to disaffirm will not be sufficient alone ; but connected with circumstances may become so. Thus, if the adult keep property purchased in infancy, after being requested to re- turn it if he did not intend to keep it, it was held to be a ratification.* And where an infant bought a yoke of oxen, for which he gave his note, and after his majority sold them and used the money, the like decision was rendered.® And there are other decisions to like efi'ect, where the adult has retained land purchased in infancy,*' or personal property ,''^ or taken a deed to property.® If the adult refuse to return the consideration when notified to do so, and still has it in his power, it seems clear that he should be bound ; but mere retention of the consideration, without such notice to return, would not alone suffice,^ and if it had been disposed of be- fore the infant reached his majority, the failure to return it would be no ratification.^" § 235, Ignorance of the law excuses no one, and there- fore it is not necessary to a valid ratification of a contract made by an infant, that the adult ratifying should know the fact that his infancy rendered his contract invalid.^^ A difi^erent view has been taken in some cases,^^ but the doc- ' Smithy. Mayo, 9 Mass. 63; Robbias v. Eaton, 10 N. H. 561 ; Hinely v. Margaritz, 3 Barr, 438. = Benham v. Bishop, 9 Conn. 330; 1 Parsons N. & B. 75,76. ' Barnaby v. Barnaby, 1 Pick. 221 ; Jonea v. Phoenix Bank, 4 Seld. 338. ' Aldrich v. Grimes, 10 N. H. 194. ' Lawson t. Lovejoy, 8 Greenlf. 405. ° Armtield v. Tate, 7 Ired. 258. ' Cheshire v. Barrett, 4 McCord, 241 ; Thomasson v. Boyd, 13 Ala. 419. ' Montgomery v. Witbeck, 23 Minn. 173. ' Benham v. Bishop, 9 Conn. 330. '» Bobbins v. Eaton, 10 N. H. " Morse y. Wheeler, 4 Allen, 570. " Harmer y. Killing, 5 Esp. 193; Reed y. Boshears, 4 Sneed, 118; Hinely y. Margaritz, 3 Barr, 428 ; Curtin v. Patten, 11 8. & R. 305. 204 PEKSONS PARTIALLY OR WHOLLY DISQUALIFIED. trine of the text is sustained both by decisions of courts and opinions of distinguished juridical writers.^ It will, at least, be presumed that an adult, ratifying a contract entered into in infancy, knew the fact that he was not legally bound.^ § 236. In England and some of the United States, ratifi- cation must be in writing. In 1828, Parliament enacted the statute of 9 George IV, c. 14, commonly called Lord Tenter- den's act, M'hereby it is provided that " no action shall be maintained whereby to charge any person, upon any promise made after full age, to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith." And similar statutes have been enacted in most of the United States." In England, the Court of Exchequer held that the statute made a distinction between new promises and ratification, and that " ratifica- tion," as therein used, would go so far as to comprehend such a ratification as would make a person liable as principal for an act done by another in his name.* But this view has been criticised.^ And the view of Martin, B., in a later case, in the same court (in which, however, the judges were divided in opinion), defining ratification to be a " consent by a per- son, after he becomes of full age, to be liable for a debt con- tracted during infancy, expressed to the effect that he is will- ing to afiirm it and treat it as valid," " seems to be a clear and correct conception of the subject. § 237. If an infant, after he becomes of age, retire from a firm, of which he has been a member, he must give notice of the fact ; otherwise he will be bound by its contracts ' Scbouler on Domestic Relations, 583. = Taft V. Sergeant, 18 Barlo. 322. 'Code of Virginia (ed. 1873), p. 985, ch. 140. See Brown on Statute of Frauds, and Throop on Verbal Agreements. ■! Parsons N. & B. 77 ; Scbouler on Domestic Relations, 576. * Harris v. Wall, 1 Exch. 122. " Mawson v. Blane, 10 Exch. 306. MARRIED WOMEN. 205 made after his majorit3\^ But the mere fact that he con- tinues in a firm, after his majority, is no ratification of con- tracts made by the firm while he was an infant.^ § 238. If an infant, together with an adult, make a joint promissory note, it has been held, in England, that the payee may bring his action upon it against the adult, without making the infant a party.^ But in the United vStates, a different view is taken, the infant's undertaking being void- able, not absolutely void ; * and this view is specially ap- plicable when the note is not negotiable.® SECTION IV. MAEEIED WOMEN. § 239. By the common law of England, and of many of the States of the United States, in which it has been adopted and preserved, the wife merges her personality by marriage in the person of her husband. They two become in law one person, in so far as affects the business concerns of life. That person is the husband, and the wife can make no contract binding upon herself, or upon her husj)and without his con- sent.^ This rule of the common law, which grew out of the feudal system, has been modified or abolished by statute in some of the States, and the tendency of legislation is to en- large and enfranchise the capacity of married women, espe- cially in those States which are the seats of great commercial ' Goods V. Harrison, 5 B. & Aid. 147. ' Crabtree v. May, 1 B. Mon. 389. ' Burgess v. Merrill, 4 Taunt. 468; Chandler v. Parkes, 3 Esp. 76; Jaffray v. Frebain, 5 Esp. 47 ; Edwards on Bills, 67, note; Byles [*59], 149. * Slocum V. Hooker, 13 Barb. 563; 13 Barb. 536. 'Cole V. Pennell, 3 Rand. 174; Wamsley t. Lindenberger, 3 Band. 478; Green, J., saying: "In Englaud, a note of hand given by an infant, even for necessaries, is perhaps void,- because, having the effect of a bill of exchange by statute, he might be precluded from contesting the consideration against a third person. But no such an objection exists as to the note of hand given in this case." " 1 Blackstone's Commentaries, 443; 3 Kent Com. 139. 206 PERSONS PAETIALLT OR WHOLLY DISQUALIFIED. centers. Experiments upon social institutions are the order of the day, but innovations of the kind are, to say the least, of very doubtful policy. § 240. Wherever the common law prevails a married woman cannot bind herself as the drawer, acceptor, maker or indorser of a negotiable instrument, and such instruments signed by her (unless as agent for another) are absolutely void.^ And even a promise made by her after her husband's death to pay a l)ill or note which she executed during his lifetime will not bind her unless upon a new and good con- sideration.'^ § 241. The wife's identity is so completely merged in the husband's that she can no more contract with him than with a stranger. Therefore the drawing or indorsement of a bill or note by a husband to his wife is void, and she cannot sue upon it either in his lifetime,^ or against his executor after his decease.* But the husband may indorse it to her in order that she may be the mere conduit, and indorse it over to another party, the whole transaction being regarded as the husband's.^ So the bill or note of a married womaa payable to her husband is void, but if he indorse it he is liable upon his indorsement.^ And if a note be given by a husband to his wife for money advanced by her out of her separate estate, it constitutes a declaration of trust in favor of the wife.'' ' Mason v. Morgan, 2 Ad. & El. 30; Howe v. Wildes, 34 Me. 566; Chouteau V. Merry, 3 Mo. 354; Van Steenburgh v. Hoffman, 15 Barb. 38; Chitty on Bills (13 Am. ed.) [*30], 28. = Loyd T. Lee, 1 Strange, 94; Chitty, Jr. 343 (1717) ; Meyer v. Haworth, 8 Ad. & El. 467; Littlefield t. Spee, 3 B. & Ad. 811 ; Eastwood v. Kenyon, 11 Ad. & El. 438; Vance v. Wells, 6 Ala. 737; 8 Ala. 399; Watkins v. Halstead, 3 Sandf. 311; Schouler on Domestic Relations, 74; Byles on Bills (Sharswood's ed.) [*63], 153. ' Gay T. Kingsley, 11 Allen, 345. " Jackson v. Parks, 10 Cusb. 550; Sweat v. Hall, 8 Vt. 187. " Slawsou V. Loring, 5 Allen, 340. = Haly v. Lane, 3 Atk. 181. ' Murray v. Glasse, 33 L, J. Ch, 126. MABEIED WOMEN. 207 § 242. Married looman as payee and indorser.—li a bill or note be made payable to a single woman, and slie afterward marries, it becomes tlie property of her husband ; and if made to her after marriages, it is the prop- erty of her husband. For two reasons, therefore, a mar- ried ■ woman, who is the payee of a negotiable instrument, cannot transfer a perfect legal title to it, or bind herself by indorsing it ; first, because she has no capacity to contract ; and second, because the instrument is her husband's.^ But still, although the husband might recover the instrument which has been transferred by his wife, in an action of trover against the holder, the drawer and acceptor of a bill and the maker of a note, who have bound themselves to pay to the payee or order, are estopped, when that order is made, to deny its sufficiency. It does not lie in their mouths to de- clare the effect of their own engagement to be different from its terms ; and the holder, under the indorsement of a payee, who is a married woman, may recover against them.^ And ■ Cotes V. Davis, 1 Camp. 485 (1808); Barlow v. Bishop, 3 Esp. 266; 1 East, 4S3 (1801) ; Connor v. Martin, 1 Strange, 516 ; Rawlinson v. Stone, 3 Wilson, 5 ; Evans v. Secrest, 3 Ind. 545; Savage v. King, 17 Me. 301; Shuttleworth v. Noyes, 8 Mass. 239. " Smith V. Marsack, 6 Com. B. 486 ; Wilde, C. J., said : " In support of a contrary doctrine, the cases of Connor v. Martin, 1 Strange, 516; Barlovr v. Bishop, 1 East, 482, and Prince v. Brunatte, 1 Bing. N. C. 435, s. c. 1 Scott, 343, were cited, on the argumeot, by the counsel for the defendant. In Connor V. Martin, as reported in Strange, the plaintiff declared on a note made to a J erne covert, and indorsed by her to him ; and, on argument, judgment was given for the defendant — the right being in point of law in the husband, and the wife having no power to dispose of it. But this case was cited by Dennison, J., in Rawlinson v. Stone, 3 Wils. 1, 5, from a note taken by himself in court; and it appears from that learned judge's statement, that the promissory note in ques- tion had been given to the wife before marriage. Barlow v. Bishop is certainly a direct authority for the position, that, if a note is drawn payable to a woman or order, and her indorsee sues the maker, he may set up as a defense that she was a married woman, though he knew her to be such at the time he made the note. But it was observed by Lord Abinger, in Pitt v. Chappelow, 8 Mees. & W. 616, that, in Barlow v. Bishop, the plaintiff must be taken to have known the fact of the husband's property in the bill, and, therefore, could not take an as- signment of it from the wife. Indeed, it appears, from the report of the case at nisi print, in Epinasse, 3 Esp. 366, that the wife had given a previous note for the money in her own name, and that the note in question was given in conse- 203 PBKSONS PAETIALLT OK WHOLLY DISQUALIFIED. if there be an indorser, after tLe married woman, he cannot dispute her capacity, as his indorsement warrants it.^ But other parties to the instrument, not being estopped by their relation to it, may show that one — not the payee — who has indorsed it, is a married woman. These views clearly apply where the paper has been executed to the woman after her marriage ; but if made to her before, disability subsequently created might be pleaded by any party.^ § 243. The mere fact that the wife is living separate and apart from her husband,^ or that she has eloped from her husband and is living in adultery with another person,* or that she has a separate maintenance secured to her,® or that she has been divorced from her husband's bed and board (a quence of such former note not being negotiable, which appears to favor Lord Abinger's supposition, that the plaintiff must have known of her coverture be- fore the note was indorsed to him. In Prince v. Brunatte, it was certainly as- sumed by the court, as well as by the counsel on both sides, that such a plea as the present would be a good answer to the action ; and the same observation arises with respect to the case of Cotes v. Davies, 1 Camp. 485, and that of Prest- wick V. Marshall, 7 Bing. 565, s. c. 5 Moore & P. 513. But in none of these cases does it appear that the point now under consideration was ever made, viz., that the case falls within the general principle — which is stated by Bayley, J., in his judgment, in Drayton v. Dale, 2 Barn. & Cress. 293, as applicable to all negotiable securities — that a person shall not dispute the power of another to indorse an instrument when he asserts, by the instrument, that the other has such power. And we can discover no reason why this principle should not be applicable; and if it is, it appears to us to govern the present case, and to prove that the plea in question is bad. It need scarcely be added that, in so deciding, we do not mean at all to impugn the proposition that, if a bill or note is made payable to the order of a married woman, the property in it will pass by the in- dorsement of the husband, or he may sue on it, either joining his wife as a party to the action, or in his own name, at his option. And, consequently, it cannot be denied that the defendant may possibly be compelled to pay the bill in ques- tion twice. But this is a consequence which follows from his own act of ac- crediting the capacity of a woman to indorse, by accepting a bill payable to her order, who in truth was incapable." ' Prescott Bank v. Caverly, 7 Gray, 217. ^ See Smith v. Marsaok, 6 Com. B. 486. ' Marshall v. Rutton, 8 T. R. 545; Hatchett v. Baddeley, 3 W. Black. 1079; Lean v. Schutz, 2 W. Black. 1195; Hyde v. Price, 3 Yes. Jr. 443; Story on Bills, § 90; Chitty on Bills (13 Am. ed.) [*21], 28. * IWd. ' Ibid. MARRIED WOMEN. 209 mensa et thord)} will not at common law restore to the married woman her right to contract. In Massachusetts, a different rule prevails when there has been a divorce from bed and board, and the married woman may then contract.^ Everywhere a divorce from the bonds of matrimony {a vin- culo matrimonii') restores the woman to full competency.* The fact that a married woman represents herself to be un- married does alter her disability.* § 244. There are certain exceptional circumstances under which the contracts of a married woman may be binding upon her, or upon her husband, and we shall consider them utider these heads : (1) When husband is an alien or civilly dead. (2) "When wife has separate estate. (3) When wife is sole trader by special custom or statute. (4) When wife purchases necessaries. (5) When husband adopts her name as binding him. (6) When wife is agent of husband. § 245. And in the first place, 'when the hvshand is an alien enemy, the wife may contract, for it may be necessary to her support and maintenance that she may sue and be sued, and her husband is legally barred from coming to or communicating with her.^ So if a married woman be resi- dent in any country, and her husband is an alien who has never been in that country, it has been held that she may then contract like a feme sole.^ This would clearly be the case if by the laws of the country of which the husband was a citizen he could not leave without the sovereign's permis- ' Fairthome v. Blaquire, 6 Maule & 8. 73; Lewis v. Lee, 3 Barn. & C. 291 ; Chitty on Bills (13 Am. ed.) [*31], 38; Byles (Sharwoocl's ed.) [*62], 153. In Scotland it is otherwise. Thomson on Bills, 138 ; and in England as it seems now by statute, 34 & 35 Vic. c. 86, § 6. " Dean v. Richmond, 5 Pick. 461 ; see also 3 Kent Com. 136. = Chamberlaine v. Hewson, 5 Mod. 71; Chitty on Bills [*2l], 38; Story on Bills, § 90; 1 Parsons N. & B. 78. * Cannam v. Farmer, 3 Exch. 698; Lowell v. Daniels, 3 Gray, 161. ' Derry v. Duchess of Mazarine, 1 Lord Raymond, 147 ; M' Arthur v. Bloom, 2 Duer, 151. ° Kay V. Duchesse de Peinne, 3 Camp. 133; Gregory v. Paul, 15 Mass. 31 ; Story on Bills, § 91 ; Chitty (13 Am. ed.) [*23], 39 ; 1 Parsons N. & B. 84. Vol. I.— 14 210 PBKSONS PARTIALLY OR WHOLLY DISQUALIFIED. sion, for then there would be a legal barrier between them.^ But in the case of an alien who has once resided in a coun- try, the animus revertendi is to be presumed, and it has been held in England that a woman by birth an alien, and the wife of an alien, cannot be sued as eifeme sole if her husband has lived in that country, although he has left it and entered the service of a foreign State.*^ § 246. In Massachusetts it has been held that the resi- dence of the husband in another of the United States is the same as if he were in a State entirely foreign, he being then beyond the jurisdiction of the State courts;* and that when- ever the husband has never been in the commonwealth, or has gone beyond its limits, deserted his wife and renounced his marital rights, her ability to contract and sue is restored.* But this view, though perhaps salutary, is denied elsewhere,''' and seems an innovation on the strict rules of the common law. If the husband has abjured the realm, or if he is " civilly dead," as he is termed, when by judicial sentence he has been banished or transported ; or if he has by a religious profes- sion, renounced civil life, the disability of the wife is sus- pended during that period, and her ability to contract ' M'Artbur v. Bloom, 2 Duer, 151. ' Kay V. Duchesse de Peinne, 3 Cump. 123. = Abbott V. Bailey, 6 Pick. 89. ■■ Gregory v. Paul, 15 Mass. 31. ' Chouteau \. Jlerry, 3 Mo. 254. In this case the husband abandoned his wife in Missouri, and removed to Arkansas Territoiy in 1821, and it was held that she was not bound on a note given by her in 1831 in Missouri. The court said: "Coverture oi^eratcs a legal disability to contract, and all contracts of a feme covert are absolutely void. The facts in this case do not biing it within any of the exceptions. The cases cited from the English books are where the hus- bands abjured the realm, or were foreigners residing abroad. The principles settled in these cases do not apply. If by a removal from one State to anothor, or a separate residence in different States, the indissoluble connection by which the wife is placed under the power and protection of her husband could be can- celed, and the parties thereby relieved of their respective liabilities and dis- abilities, there would be little need of troubling the legislature or the courts on the subject of divorces." MAERIED WOMEN. 211 restored.^ So, if he is imprisoned by judicial sentence.^ And if the husband has been abroad and unheard of for seven years, he is presumed to be dead, and the wife's ability to contract revives.' § 247. Second. When the wife has a separate estate, it is held in England liable in equity for all of her debts contracted on the faith of it.* There, where a married woman borrowed money, promising to repay it out of her separate property, the rents and profits thereof were appropriated to its pay- ment.^ So, where a married woman gave a note jointly with her husband, and as a security for his debt ; " where a married woman accepted a bill drawn and indorsed by her daughter ; ^ and where a married woman living separately from her hus- band accepted a bill,^ her separate property was held liable. § 248. In the United States the authorities on this subject differ. In New York it has been held upon full consideration that it is essential in order to chai-ge the wife's separate property, either (1) That the intention to do so should be declared in the very contract which is the foundation of the charge, or (2) That the consideration should be obtained for the direct benefit of the estate itself,' though it is' not neces- sary that the bill, note or other contract should specify the ' Hatchett v. Baddeley, 3 W. Black. .1079 ; Story on Bills, § 91. " Ex parte Franks, 7 Bing. 762; Byles on Bills (Sharswood's ed.) [*63], 154; 2 Kent Com. 136. ' Loring T. Sleineman, 1 Mote. 304; Byles (Sharswood's ed.) [*63], 154; Chitty [*23], 39. * Byles on Bills (Sharswood's ed.) [*63], 153; Edwards on Bills, 68, 69; Chitty on Bills [*31], 28, 39. 5 Bulfln V. Clarke, 17 Ves. 366. ° Hulme v. Tenant, 1 Bro. C. C. 16. ' Bingham v. Noyes, Chitty on Bills [*21], 38. " Stewart v. Lord Kirkwall, 3 Mad. 387. ° yale V. Dederer, 33 N. Y. 450 ; 18 N. Y. 365 (overruling same case in 21 Barb. 383); followed in White v. McNett, 33 N. Y. 371; Ledlie v. Vrooman, 41 Barb. 109; White v. Story, 43 Barb. 134; Barnett v. Lichtenstein, 39 Barb. 194; Corn Exchange Ins. Co. v. Babcock, 43 N. Y. 613. In New York it is held that if the married woman borrows money for the express purpose of benefiting her separate estate, her note for the amount is good, though the money be used for another pur- pose. McVey v. Cantrelf, 70 N. Y. 295 ; contrn, Heugh v. Jones, 33 Penn. St. 433. 212 PERSONS PABTIALLT OK WHOLLY DISQUALIFIED. particular property to be charged.^ The general rule in this country, however, still seems to be, that the wife's separate property is liable in equity for all debts which she, by impli- cation, or expressly by writing or parol, charges thereon, because it is right that her debts should be paid.'^ And as the doctrine arises entirely out of equity, it seems to us correct, as it is the existence of the intention to charge the separate estate, and not the peculiar mode of expressing it which creates the equity.^ At the present day in New Yort,, contracts of a married woman in relation to her separate estate can be enforced at law or in equity, as the case may be,* and the executory contracts of married women axe prima facie valid.'^ The intent to charge the separate estate may be inferred from circumstances, and a specific agreement is not necessary.* But as to note of married woman payable to and indorsed by her husband, it has been heAdi prima facie a nullity, and that evidence aliunde was necessary to charge her by showing that it was on her separate business or for the benefit of her separate estate. '^ § 249. In Massachusetts, where the statute confers upon married women the capacity to sell and convey their separate 'Com Exchange Ins. Co. v. Babcook, 42 N. Y. 613. ' Todd V. Lee, 15 Wis. 365; Grapengether v. Fejervary, 9 Iowa, 163; Major T. Symmes, 19 Ind. 117; Rogers v. Ward, 8 Allen, 387; Pentz v. Simeon, 2 Beasley, 232; 2 Story's Eq. Juris. §§ 1398, 1401; 2 Kent Com. 164; Edwards on Bills, 70. ' Owens V. Dickenson, 1 Craig & Ph. 48, Lord Chancellor Cottenhatn saying r. " The separate property of a married woman being a creature of equity, it follows, that if she has a power to deal with it, she has the other powers incident to property in general, namely: the power of contracting debts to be paid out of it; and inasmuch as her creditors have not the means at law of compelling pay- ment of those debts, a court of equity takes upon itself to give effect to them, not as personal liabilities, but by laying hold of the separate property, as the only means by which they can be satisfied." * Hier v. Staples, 51 N. Y. 136; Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613. ■* Willsey v. Hutchius, 17 N. Y. S. C. (10 Hun), 503. • Conlin v. Cantrell,,64 N. Y. 219. ' Second Nat. Bank v. Miller, 62 N. Y. 639. ^ MARRIED WOMEN. 213 property, enter into contracts, and carry on trade,^ it has been held tliat the note of a married woman given in pay- ment for land conveyed to her sole and separate use,^ or for money borrowed to enable her to pay for farming land of which she holds a title bond to her sole and separate use, is valid.'' When a married woman charges her separate estate with a debt, all her estate held at the time of trial and judgment is liable, as well as that held when the contract was entered into.* A promise made by a widow to pay a debt contracted during coverture would be void,'' unless she had a separate estate, in which case it would be valid." § 250. Third. When the wife is a sole trade?', by the cus- tom of London she is liable on her contracts in the city courts, and though the husband must be joined in the action for con- formity, execution will be against the wife alone.'' Statutes empowering married women to be sole traders have been passed in some of the States of the United States, and when so empowered they may make bills or notes ; ^ but unless so empowered, a married woman cannot, without her husband's consent, bind herself in trade, except under the circumstances which are herein enumerated. But, with the husband's con- sent, she may carry on trade separately as a regular merchant, and bind herself as a party to a negotiable instrument.' ' The general statutes, c. 108, § 3, provide that ''a married woman may bar- gain, sell and convey her separate real and personal property, enter into any contracts in reference to the same, carry on any trade or business, and perform any labor or service on her sole and separate account, and sue and be sued in all matters having relation to her separate property, business, trade, services, labor and earnings, in the same manner as if she were sole." = Stewart y. Jenkins, 6 Allen, 300. = Chapman v. Foster, 6 Allen, 13G. * Todd V. Ames, 60 Barb. 463. ' Lloyd V. Lee, 1 Strange, 94; Littlefield v. Shee, 3 B. & Ad. 84. ' Lee V. Muggridge, 5 Taunt. 36. ' Beard v. Webb, 3 B. & P. 93; Byles on Bills (Sharswood's ed.) [*63], 153-3. " Camden v. Mulen, 29 Cal. 566. » Todd V. Lee, 16 Wis. 480; Partridge v. Stocker, 36 Vt. 108; Eichardson v. Merrill, 33 Vt. 37 ; Wieman v. Anderson, 43 Penn. St. 311 ; James v. Taylor, 43 Barb. 530 ; Schouler's Dom. Rel. 345, 346. 214 PERSONS PARTIALLY OR WHOLLY DISQUALIFIED. § 251. Fourth. As to necessaries. — Every husband is bound to provide for his wife, and the common law enforces this obligation, lest the wife may become a burden to the community.^ And if the husband fail to furnish her with the necessaries of life, such as food, raiment, lodging and medical attendance, the law presumes an authority in her to procure them on his credit, and he will not be permitted to deny that authority was given.^ § 252. FiftJi. When husland adopts wife's name. — A per- son may adopt whatever name he pleases in his business dealings, and then when he uses such adopted name he will be bound by it." Therefore, if a husband sign his wife's name to a bill or note, he will be considered as having adopted it pro hac vice, and will be bound accordingly.* So, if the wife executes a note for her husband, in his presence, and signs her own name merely, with his knowl- edge and consent, it will bind him.^ And in any case where the husband clearly authorizes his wife to draw or indorse bills or notes on his account and sign her name, and she does so, he will be regarded as intending thereby to bind him- self, and will be so held.*^ And if, after the wife has signed her name, the husband promises to pay the bill or note, or otherwise ratifies the wife's act, it will be presumed that she had authority from him, and he will be estopped to deny it.' Thus, where a bill was addressed to '' William Bradwell," and was accepted by "Mary Bradwell." his wdfe, who WTote her name across it, and William Bradwell, after its dishonor, promised to pay it very shortly, it was held that it was Wil- liam Bradwell's acceptance, and Maule, J., said : " He, in ' Schouler's Domestic Relations, 76-79, 85 ; Mudge v. Bullock, 83 111. 23. = Id. ° See Chapter XT, on xigents as Parties. ' Id. ' Prestwick v. Marshall, 7 Bing. 565 ; Menkins v. Heringhi, 17 Mo. 297. " Cotes V. Davis, 1 Camp. 485; Hancock Bank v. Joy, 41 Me. 568; see Miller Y. Delamater, 13 Weud. 433. ' Cotes V. Davis, 1 Camp. 485 ; Lindus v. Bradwell, 5 C. B. 5S3 ; Shaw v. Emery, 38 Me. 484; Mudge v. Bullock, 83 111. 23. MARRIED WOMEN. 215 effect, says that his wife was authorized ~bj him to accept this particular bill in the way she did." ^ And where the husband carries on business generally in his wife's name, that is conclusive that he adopts it and is bound by it.^ § 253. Sixth. When the wife is agent of her husband. — Marriage does not incapacitate a married woman from being the agent of her husband. The power to act as his attorney implies no separation from, but is rather a representation of, her lord.^ Therefore, the husband will be bound whenever she uses his name by his express or implied authority. Un- less the husband has adopted her name as binding on him, by authorizing its use, the wife must sign the husband's name.* The form may be : " A. (husband) by B. (wife) ; " or " B. (wife) for C. (husband)." But the mere signature of the husband's name, if by his authority, would doubtless suffice.® The wife's authority must be clearly proved.^ If she be the husband's amanuensis in his business, because he cannot write, a note signed by her must be proved to have been given on account of his business concerns.'' If the husband allow the wife to purchase goods, and to give a note, he may make any defense that would have been available had he made the note, himself; but against a bona fide holder for value he would be defenseless.® The wife cannot delegate authority granted her, but another person, in her presence, may write her husband's name for her." § 254. Husband's rights to wife's choses in action. — Bills and notes possessed by a single woman before her marriage are her choses in action, and by marriage the husband ' Lindus v. Bradwell, 5 0. B. 583. = Abbott v. McKialey, 3 Miles, 220. = 1 Black. Com. 443. ' Minard v. Mead, 7 Wend. 68 ; Abbott v. McKinley, 3 Miles, 320. ° 1 Parsons N. & B. 80. But see Wood v. Goodridge, 6 Cush. 117. ' Coldstone v. Tovey, 6 Bing. N. C. 98. ' Smith V. Pedley, Chltty, Jr. on Bills, 1241. » Reakert v. Sanford, 5 Watts & S. 164. ' Lord v. Hall, 8 C. B. 637. 216 PERSONS PAETIALLY OR WHOLLY D1SQUAL1J?1ED. becomes entitled to reduce them into his possession, and to make them his own.^ And so if a bill or note is made pay- able to a married woman, or becomes her property after mar- riage, the right thereto vests in her husband, and he alone is competent to indorse it,^ or to receive payment.^ And the husband may, at his election, indorse or nego- tiate the instrument, or sue upon it alone in his own name ; ^ or he may sue upon it in the joint names of himself and his wife;* or he may allow her to indorse it or negotiate it in her own name.** In this last case it may be declared on, either as indorsed by the husband, or in the wife's name by his consent ; and a good title may be thus acquired against the husband, as well as other parties.'' It was once held that a negotiable instrument was a personal chattel in possession ; * but it is well settled that it is a chose in action.* § 255. If a husband loaning money, takes therefor a note payable to himself and wife, it imports a gift to his wife in the event she survives him.^" And if, after marriage, a bill or note be executed to the husband and wife as joint payees, the legal interest survives to the survivor.^^ ' Richards v. Richards, 3 B. & Ad. 447; Garforth v. Bradley, 2 Ves. 675; Howard v. Okes, 3 Wels. H. & G. 136; Dean v. Richmond, H Peck, 461; Legg V. Legg, 9 Mass. 09 ; Chitty [+22], 80 ; Story on Bills, § 93. ' Id.; Philliskirk v. Pluckwell, 2 Maule & S. 399; Chitty [*22, 28], 30. = Byles [*G5], 157 ; 1 Parsons N. & B. 89. 'Mason v. Morgan, 2 Ad. & El. 30; Burrough v. Moss, 10 B. & C. 558; McNeilage v. Holloway, 1 Barn. & Aid. 318; Gatera y. Madeley, 6 Mees. & W. 423 ; Arnold v. Revonet, 4 J. B. Moore, 70 ; Sutton v. Warren, 10 Mete. 451. ' Richards v. Richards, 2 B. & Ad. 447. ° Stevens v. Reals, 10 Cush. 291; Menkins v. Heringhi, 17 Mo. 297; Roland T. Logan, 18 Ala. 307. ' Story on Bills, § 92. ' McNeilage v. Holloway, 1 Barn. & Aid. 218. • Scarpellini y. Atcheson, 7 Ad. & El. N. S. 864; Richards v. Richards, 2 Bam. & Ad. 447; Gaters v. Madeley, 6 Mees. & W. 423; Hart v. Stephens, 6 Q. B. 937; Needles v. Needles, 7 Ohio St. 432; Tritt v. Colwell, 81 Penn. St. 238 ; Edwards on Bills, 72. " Sandford v. Sandford, 45 N. Y. 733. " Richardson v. Daggett, 4 Vt. 336; Draper v. Jackson, 16 Mass. 480; Byles on Bills (Sharswood's ed ) [■'64], 156 ; see Me Gadbury, 32 L. J. 380. MARRIED WOMEN. 217 § 256. It is necessary, to tlie perfection of the husband's right of property in the bills, notes, and other choses in action of his wife, that he should reduce them into his own possession during the marital relation. And if he dies without having done so, and the wife survives him, the right to their sole possession revives to her, and does not pass to his personal representative, and she may then sue upon or indorse them.^ If the wife dies, the husband surviving, her personal representative will be entitled to sue, for them, but the husband will be entitled to the proceeds, when recovered, in right of his survivorship.^ And the husband is entitled to be her personal representative.'' It has been held that if the husband gets actual possession of her unreduced choses in action after her death, although not her personal represen- tative, they become his property.* If he dies, without hav- ing taken out letters of administration on his wife's unsettled estate, the right to do so passes to his next of kin, and not to hers.^ § 257. Any act of the husband during marriage manifest- ing a distinct purpose to make his wife's choses in action his own, operates as a reduction into possession, and bars her right of survivorship ; ^ but mere intention, unaccompanied by act, will not suffice.'^ If the husband elects to bring suit upon the instrument in his own name, in cases in which he may join his wife or not, as he pleases,® or collects the proceeds and ' Vance t. McLaughlin, 8 Griit. 389; May v. Boisseau, 13 Leigh, 521 ; Draper V. Jackson, 16 Mass. 480; Hayward v. Hayward, 20 Pick. 517; Gaters v. Made- ley, 6 Mees. & W. 423; Richards v. Richards, 2 B. & Ad. 447; PhiUiskirk v. Pluckwell, 2 Maule & S. 393; Byles [*64], 155., » Betts V. Kimpton, 3 Barn. & Ad. 273 ; Story on Bills, § 93 ; 1 Parsons N. & B. 85. Md. ^ Whitafcer v. Whitaker, 6 Johns. 113; Lee v. Wheeler, 4 Ga. 541; Revel v. Revel, 2 Dev. & Bat. 273. ' Schouler's Domestic Relations, 163. • 1 Parsons N. & B. 86. ' Blount v. Bestland, 5 Ves. Jr. 515. " Oglander v. Baston.l Vern. 396; 3 Ves. Sr. 677; see Schouler's Dom. Rel. 127. 218 PERSONS PAETIAIiLY OR WHOLLY DISQCALIFIED applies them to bis own use/ it is a reduction into possession. So, if the husband assumes ownership of the instrument, places it among his own effects, and indicates no intention to hold it in trust for his wife, it would seem that it is suffi- cient.^ But the mere fact that he takes it in custody would not be alone sufficient, per se, as it might be in trust for his wife.* Indorsing or transferring the instrument is a reduc- tion into possession ; * but collecting interest or part payment is only a reduction ^:)ro tanto^ And even collecting the whole amount, if it were promptly re-invested for the wife in other choses in action, would not defeat the wife's rights.^ Nor would mere authority to an agent to collect, not be- ing a power coupled with an interest.^ The bankruptcy of the husband does not operate a reduction into possession.* But, in the United States, it has been held that an assign- ment under an insolvent law defeats the wife's right of sur^ vivorsbip.* § 258. If a single woman, who is a party to a bill, note or other contract, marries, her husband becomes responsible, for by marriage be adopts her fortunes " for better for worse." ^^ And it matters not that he did not know, and that bis wife had concealed from him the existence of such obligations.^^ Husband and wife must be sued jointly on such obligations.^* But this liability ceases with the marital relation. If the husband dies, the wife alone is liable, and not his personal ' 1 Parsons N. &. B. 80; see Scliouler, 119. ° See Sohouler's Domestic Relations, 119 ° Holmes v. Holmes, 28 Vt. 765. ' Scarpelliui v. Atchesou, 7 Q. B. 864 (53 E. C. L. R.); Tuttle v. Fowler, 23 Coun. 58; Byles (Sharswood's ed.) [*65], 156; 1 Parsons N. & B. 86. ' Nash V. Nash, 2 Mad. 133; Hart v. Stephens, 6 Q. B. 937. ' Stanwood v. Stanwood, 17 Mass. 57. ' 1 Parsons N. & B. 87. ' Sherrington V. Yates, 12 M. & W. 855, overruling s. c. 11 M. & W. 42; Byles (Sharswood's ed.) [*65], 156. ° Glasgow V. Sands, 3 Gill. & J. 96 ; Richwine v. Keirn, 1 Penn. 373. '° 1 Black Com. 443; 3 Kent Com. 143-146. " Schouler's Domestic Relations, 69. '- Mitchinson v. Hewson, 7 T. R. 343. PERSONS UNDER GUARDIANSHIP AND IN BANKRUPTCY. 219 representative.^ If the wife dies, only her personal representa- tive is liable.* But the wife's choses in action unreduced to possession by the husband at the time of her death may be followed in the hands of the husband, when he is her admin- istrator, by her creditors, and subjected to payment of her debts contracted when a feme sole? SECTION y. PERSONS UNDER GUARDIANSHIP AND IN BANKRUPTCY. § 259. Persons under guardianship, whether for infancy, imbecility, improvidence, or otherwise, cannot contract, and therefore cannot be parties to negotiable instruments.* § 260. All rights of property belonging to a bankrupt pass by his bankruptcy to his assignee. He has, therefore, no power of disposition over it, and cannot sue upon his choses in action, or transfer or indorse them to another.^ But if, after bankruptcy, a note be made payable to the bankrupt or order, and by him transferred, the maker is estopped to deny his right to transfer by having made it payable to him or order.* If the property in the instrument had passed from the bankrupt before his bankruptcy, and the indorsement, which was intended, omitted, he or his assignee may be com- pelled to indorse it afterward.'' A note given by a bank- rupt after his discharge for a debt existing prior to the ad- ' Woodman v. Chapman, 1 Camp. 189; Curtton v. Moore, 3 Jones Eq. 304; Byles (Sharswood's ed.) [*65], 157. ' 2 Kent Com. 144 ; Byles [*65], 157. ' Heard v. Stamford, 3 P. Wms. 409 ; Morrow v. Whitesides, 10 B. Monroe, 411; 1 Parsons N. & B. 86. * Hansen t. Felton, 13 Pick. 306 ; Chew v. Bank of Baltimore, 14 Md. 399 ; 1 Parsons N. & B. 89. ' 1 Parsons N. &B. 153; Story on Notes, § 103. • Drayton v. Dale, 2 B. & C. 393; see ante, % 93. ' Smith V. Pickering, Peake, 50; ex parte Mowbray, 1 Jac. & W. 428; Wat- kins V. Maule, 3 Jac. & W. 237; Hughes v. Nelson, 29 N. J. (Eq.) 549. 220 PERSONS PAKTIALLY OE WHOLLY DISQUALIFIED. judication, upon condition that the payee would dismiss a proceeding to set aside the discharge, is void ; and a subse- quent promise to pay such a note would be also void.^ If a bankrupt who is the payee of a bill or note, sells the same without indorsement before, and indorses it after bankruptcy, such indorsement will enable the holder to bring action in his own name, for the property in the note passed by the sale, and the indorsement is a mere form.'^ ' Fell V. Cook, 44 Iowa, 485. ' Hersey v. Elliott, 67 Me. 537. CHAPTER IX. FIDUCIAEIES AS PAETIE8 TO BILLS AND NOTES. §261. (1) As to pe7'8onal representatives. — When a per- son dies, the administration of affairs of his personal estate, and its distribution among those to whom it descends, or its appropriation to the payment of debts, devolves upon his personal representative. When such representative is ap- pointed by the vi\\\ of the deceased, he is termed his execu- tor. When none is named in his will, or the one named de- clines to act, the appointment devolves upon the courts, and the appointee is termed administrator. The executor's powers accrue at the date of the testator's death, for it is then that his will takes effect. But the administrator's powers accrue only from the time of his appointment;^ but they relate back to the date of the decedent's death.^ If the will be admitted to probate, a payment to the executor nom- inated will be valid, although it afterward transpire that the will was forged.^ § 262. An administrator or executor cannot bind the decedent's estate by any negotiable instrument ; he can only bind himself If he make, accept or indorse a negotiahle instrument he will bind himself personally, even if he adds to his own name the designation of his office as personal rep- resentative. Thus, if he signs himself " A. B., executor (or administrator) of C. D.," or " A. B., as executor of C. D.," the representative terms will be rejected as surplusage.* And ' Wooley V. Clark, 5 B. & Aid. 744; Eand v. Hubbard, 4 Mete. 356; Allen v. Dundas, 3 T. R. 125 ; 1 Parsons N. & B. 161. = Jewett V. Smith, 13 Mass. 309; Lawrence v. Wright, 38 Pick. 128; Miller v. Reigne, 3 Hill (S. C.) 593 ; MoVaughters v. Elder, 3 Brev. 407. =■ Allen V. Dundas, 3 T. R. 135 ; Byles on Bills (Sharswood's ed.) [*54], 139 ; Thomson on Bills, 343; 1 Parsons N. & B. 161. ' King V. Thorn, 1 Term. R. 487. Buller, J. : " It is immaterial whether they 222 FIDUCIARIES AS PARTIES TO BILLS AND NOTES. an accommodation indorser, or acceptor, who pays the amount of the instrument has no claim against the decedent's estate.* But if the bill or note of the personal representative be taken for a debt of the decedent, the estate is discharged from liability, and the representative alone is bound.^ § 263. A personal representative may, however, execute a bill or note for the debt of his testator, and he will be per- sonally bound to pay it even in the hands of the original holder; for assets in the hands of the personal representative constitute a sufficient consideration for a promise by him to pay the testator's debt, and the promise being in writing, no proof of consideration is necessary, even if the instrument be non-negotiable.^ But as between the original parties the personal representative may rebut the prima facie evidence of assets, and show total or partial deficiency ; and he will then be exonerated from liability, unless there was some Du Carry v. Gill, 4 Car. & P. 121 ; Chitty oa Bills [*28], 37. ' Stainback v. Reed, 11 Grat. 281; Bryan v. Berry, 6 Cal. 394. ' Attwood V. Munnings, 7 B. & C. 378 ; 1 Man. & R. 66. * Brewster V. Hobart, 15 Pick. 303; Emerson v. Providence Hat Manuf. Co. 13 Mass. 237; Shankland v. Corporation of Washington, 5 Pet. 395. ' Coles V. Trecothick, 9 Ves. 274. " Lord V. Hall, 8 C. B. 627; Commercial Bank v. Norton, 1 Hill, 501; Ed- wards on Bills, 88. 232 AGENTS AS PARTIES TO NEGOTIABLE INSTRUMENTS. auttority are binding on the principal. And if he seeks to avoid liability, he must show not only a limitation of the general authority, but also that the party dealing with the agent had notice.^ § 279. If tlie holder of a bill place it in the hands of an agent to be sold in the market, and expressly directs him not to indorse it, and the agent disobeys orders, and indorses his principal's name, the principal will not be bound, even to a honaficle holder.^ But general authority to the agent to get the bill discounted, without restriction as to the mode, would imply authority to indorse it in the principal's name.^ And a subsequent promise of the principal to pay the bill where he had not authorized the agent to indorse, would be nudum factum^ § 280. The general principle that a principal is bound by act of an agent acting within the general scope of his au- thority, notwithstanding it is not in conformity to it, is sub- ject to this limitation : that whenever an authority purports to be derived from a written instrument, or the agent signs the paper with the words, " by procuration," in such a case the party dealing with him is bound to take notice that there is a written instrument of j)rocu ration, and he ought to call for and examine the instrument itself, to see whether it justi- fies the act of the as-ent. Under such circumstances, he is chargeable with inquiry as to the extent of the agent's au- thority; and if, without examining into it when he knows of its existence — and especially if he has it in his possession- he ventures to deal with the agent, he acts at his peril, and must bear the loss if the agent transcended his authority.* ' See Feim v. Harrison, 3 T. E. 757; Edwards on Bills, 85, 87. " Fenn v. HaiTisoii, 3 T. R. 757. •' Ibid. " Ibid. ■^ Stainback V. Bank of Virginia, 11 Grat. 259 ; Stainback v. Read, 11 Grat. 281 ; North River Bank v. Aymar, 3 Hill, 363 ; Alexander v. Mackenzie, 6 0. B.. 706 ; Attwood v. Miinnings, 7 B. & C. 278. Action on acceptance purporting to be by procuration. Holroyd J., said: " Ttie word ' procuration,' gave due notice to tlie plaintiffs, and they were bound to ascertain, before they took the bill, that the acceptance was agreeable to the autliority given." Edwards on Bills, 85 ; Story on Agency, § 72. COMPETENCY AND AUTHORITY OF AGENT. 233 But no such duty exists to make inquiry respecting private instructions to the agent from his principal, whether written or oral, for they may well be presumed to be of a secret and confidential nature.^ § 231. Limitations of general authority. — If authoi-ity be vested in the agent in very general terms, but the instrument enumerates certain special objects and acts, this specification will be regarded as a limitation upon the general words ; and the authority will be confined to action within the scope of the enumerated objects, unless there be some phraseology in the instrument, or some peculiar circumstance which im- presses a different intention upon the instrument. Thus it was held, in New York, that a power of attorney to collect debts, to execute deeds of lands, to accomplish a complete adjustment of all concerns of the principal in a particular place, and to do all other acts which the principal could do in person, conferred no authority on the agent to sign a note in his principal's name, the general words being limited by the matters specially mentioned.^ And so in England, where the agent was authorized to manage certain real estate, with general words extending his powers to all property of the principal of every description, and authorizing him " to do all lawful acts concerning all the principal's business and affairs of what nature or kind soever," it was held that the agent could not indorse bills in his principal's name.^ § 282. Perfect good faith is the essence of agency ; and an agent has no right to execute negotiable paper in his principal's name, or use negotiable pajDer belonging to his principal, for his individual purposes ; and if the party deal- ing with the agent have notice that he is thus acting in fraud of his principal's rights, he cannot hold the principal liable.* ' Korth River Bauk v. Aymar, 3 Hil], 263; Story on Agency, § 73. "" Rossiter y. Rossiter, 8 Wend. 494. ' Esdaile v. La Nauze, 1 Younge & Col. 347. * Stainback v. Bank of Virginia, 11 Grat. 269; Trcuttcll t. Barandon, 8 Taunt. 100; Haynes v. Foster, 2 C. & M. 337. 234 AGENTS AS PARTIES TO NEGOTIABLE INSTRUMENTS. On tlie contrary, the principal may recover paper belonging to him so transferred by the agent from the transferee.^ A power of attorney to draw, indorse or accept bills negotiable at a particular bank in the principal's name, would be con- strued as giving authority to act only in the separate indi- vidual business of the principal ; and Avould carry no au- thority to draw and indorse a bill in his own name, or in the joint name of himself and his principal.^ If an agent acting under such authority drew a bill in his own name, and indorsed it in his principal's, and caused it to be discounted, and the proceeds passed to his individual credit, that cir- cumstance would show that he was acting for his own benefit, and the party so discounting the bill could not re- cover against the pi'incipal.' Agents cannot make contracts with themselves so as to bind their principals. The law will not permit one who acts in a fiduciary capacity to deal with himself in his individual capacity.* Therefore a note made by a corporation to its trustees is against public policy and void.^ § 283. So, where the plaintiff indorsed bills to A. B. specially as follows : " Pay A. B. or order, on account of plaintiff," and A. B. pledged the bills with defendant for his private debt, it was held that the form of indorsement was sufiicient notice that the agent had no such power,' ISTor will a power of attorney to draw, indorse, or accept bills authorize the agent to draw a bill in the principal's name upon any one not having funds of the principal ; '' nor to draw, accept, or indorse a bill for the accommodation of a third party, its true construction limiting the agent's author- ' Treuttell v. Barandon, 8 Taunt. 100. ' Staiaback v. Bank of Virginia, 11 Grat. 231 ; Mechanics' Bank v. Schaum- burg, 38 Mo. 328; First National Bank v. Gay, 63 Mo. 33. ' Stainback v. Bank of Virginia, 11 Grat. 269. * San Diego t. San Diego, &c. R. E. 44 Cal. 113. See also § 1611, Vol. 2. ' Wilbur V. Lynde, 49 Cal. 290. ■' Treuttell v. Barandon, 8 Taunt. 100; Byles (Sbarswood's ed.) [*34], 113. ' Stainback v. Bank of Va, 11 Grat. 269. COMPBTEiJCT AKD AUTHOEITT OF AGENT. 235 ity to act for the principal, and in his name to draw, accept and indorse bills in the usual course of the principal's busi- ness.^ But the fact that a party was general agent of a firm, and had been in the habit of drawing drafts, and mak- ing notes and indorsements for them, may go to the jury to show by inference that he had authority to bind his princi- pal by an accommodation acceptance.^ So may evidence that a clerk had previously given notes in similar transactions for his principal.^ § 284. If, however, an agent authorized generally to " sell, indorse and assign notes " by his principal, through a power of attorney, borrow money, and offer his principal's notes as security, indorsed by himself, it has been held that the prin- cipal would be bound, although the money was borrowed in the agent's name, and used by him in his private business, unless the party dealing with the agent knew of the intended misappropriation of the funds. And Lord Brougham said: " It is said that the indorsement was only to be made for the benefit of the principal, and not for the purposes of the agent. We do not see how this very materially affects the case, for it only refers to the use to be made of the funds obtained from the indorsement, not to the power; it relates to the purposes of the execution, not to the power itself; and though the indorsee's title must depend upon the au- thority of the indorser, it cannot be made to depend upon the purposes for which the indorser performs his act under the power."* So, the principal will be bound in all cases where there is a misappropriation of funds obtained under a power exercised by the agent in conformity with his author- ity, unless the holder had notice.® And, however much au ' Wallace v. Branch Bank, 1 Ala. 505 ; North River Bank v. Aymar, 3 Hill, 263; Nichols v. State Bank, 3 Terg. 107. " Commercial Bank v. Norton, 1 Hill (N. Y.), 501. ' Valentine v. Packer, 5 Penn. 333. drawer's principal, Bigelow, J., said: "What, then, is left on the face of the paper to show that the defendant is not liable as accep- tor? Nothing, except the single circumstance that the address to him as drawee is printed in large capital letters at the top of the instrument, with the addition thereto of the word agent. This, certainly, does not necessarily or even prima facit indicate that he is the agent of the drawers. It is, to say the least, equally consistent with the i.dea that he is the agent of some third person not named on the face of the bill. Nor can we give any great effect to the fact that the de- fendant's name as drawee is printed as part of the blank used by the company. A draft or bill in like form might be used, if their course of business was to deal with him as the agent of some other person or company." The bill was sued on by an indorsee. '' Walker v. Bank of State, 9 N. Y. 583. But see Amison v. Ewing, 3 Cold. S61. 3 Chadsey v. McCreery, 37 111. 353. To same effect, see Vater v. Lewis, 36 Ind.388. * Buffum V. Ohadwick, 8 Mass. 103. INTERPEBTATION OF THE INSTRUMEKT. 341 In New York a different doctrine prevails. There where a note was payable to, and indorsed by " R. Beman, Treas- urer," and was delivered by Beman to the plaintiff on account of a debt due by the manufacturing company of which he was treasurer, it was held that he was not individually bound.^ § 416. Where a note is payable to a corporation by its corporate name, and is then indorsed by an authorized agent or oflScial, with the suffix of his ministerial position, it will be regarded that he acts for his principal who is disclosed on the paper as the payee, and who, therefore, is the only per- son who can transfer the legal title. It was so held where a note payable to the Berkshire Bank was indorsed " Simon Larned, Attorney," Larned being president of the bank, and authorized as its attorney to indorse it,^ So likewise where a note was payable to the " Globe Mutual Insurance or or- der," and was indorsed " L. Gregory, President." * § 417. An exception to the general rules of interpreta- tion, which have been stated, has been made in respect to the cashiers of banks. They are the chief financial agents of their institutions, and when a bill or note is made pay- able to an individual with the suffix of " Cas.," " Cash.," or " Cashier," to his name, it has been generally decided to be really payable to the corporation of which such party is the cashier, and so to import upon its face, the officer's name being used as that of his principal, which may not be dis- closed on the face of the paper. It has been so held where a bill was drawn payable to the order of " D. C. C, Cashier," no corporation being named.'* So where a bill was drawn payable to the order of " S. B. Stokes, Cas.," and was in like manner indorsed, the undisclosed bank was held bound by the indorsement.^ So where a note was indorsed " P. H. Folger, Cashier," Wilde, J., saying: "As to the objection, that the ' Babcock v. Beman, 1 Ker. 309. ' Northampton Bank v. Pepoon, H Mass. 388. ' Elwell V. Dodge, 33 Barb. 336 (1861). ♦ Bank of N. Y. v. Bank of Obio, 29 N. Y. 619 (1864); First National Bank V. Hall, 44 N. Y. 395 (1871). " Bank of Genesee v. Patchin Bank,. 19 N. Y. 813 (1859) ; 3 Kern. 309 (1855). 342 PRIVATE CORPOEATIONS AS PARTIES. indorsement is not made in the name of the coriDoration, we think that the indorsement by the cashier in his official capacity sufficiently shows that the indorsement was made in behalf of the bank, and if that is not sufficiently certain the plaintiffs have the right now to prefix the name of the corporation." ^ And where a note was indorsed " pay to E. O., Cashier, or order," and was signed "E. C. K., Cashier," it was held a sufficient indorsement by one bank to another.^ So where a bill was drawn on " John A. Welles, Cashier, Farmers', &c. Bank," and the acceptance was " John A. Welles, Cashier," the bank alone was held bound.^ § 418. Tl'lien parol or other extraneous evidence is ad- missible. — While it is true, as a general rule, that the liabil- ity of the principal or agent must be gathered fi'om an in- spection of the paper itself, there are nevertheless some cases in which doubtful expressions are used, or the instrument is so inaptly put together, that the precise meaning to be collected from its face, is left so ambiguous or obscure as to render its interpretation ^^er se,' too difficult and uncer- tain for just and sound construction. When the instrument is of this description, that is, when its language or terms are so unintelligible as to admit of no rational interpreta- tion of the meaning, or are not sufficiently decisive of the intention of the parties, but, on the contrary, are equivocal and uncertain, extraneous proof, parol or written, may be admitted as between the original parties to show the true character of the instrument, and what party — the ])rincipal, or the a2;ent, or both — is liable. Thus where a due bill was expressed to be " in full of labor performed on cottage lot of the K. K. Co.," saying nothing of what company, and was signed by the president with the simple signature " Ed. Robinson," parol evidence was held admissible to show that it was really the company's obligation ; * and so where a prom- issory note read, " We, the President and Directors of the ' Folger V. Chase, 18 Pick. 67. ^ Watervliet Bank v. White, 1 Denio, 009. ' Farmers', &c. Bank v^ Troy City Bank, 1 Doug. (Mich.) 473. • Richmond, Pot. & Fred. R. R. Co. v. Snead, 19 Grat. 354. IJtTERPRETATION OF THE INSTRUMENT. 343 Delancey's Valley and Sweet Air Turnpike Company, prom- ise, &c.," and was signed by C. T. H., " President," I. K H. and J. G. D., " Directors," and E. R S., " Secretary," the same rule was applied to admit evidence to show that the note was signed and accepted as the note of the company.^ So in Missouri where the note ran, " I promise to pay A. & B. $645 for building a school-house in School District No. 3, township 51, range 21," signed "P. T. Keynolds, Local Director." ^ So in New York where the note ran, " we promise," and was signed by five persons who added : " Trustees of St. John's Ev. Lutheran Church, Hudson, N. Y.," and attached the corporate seal, the Court saying : " The case M^as within the authorities admitting of proof of the circumstances under which it was given with a view to de- termine the defendant's liability. In addition to what ap- peared on the face of the paper, it was proved that the cor- poration was indebted to the payee, that the latter made claim therefor to the corporation ; that it was recognized and allowed by the trustees, its only officers; he requested a note, and the note in suit was given him. * * * The plaintiffs here stand in no better position on this question than would the payee, inasmuch as the note on its face dis- closed the fact that this defense here interposed existed, or that the proof to establish it was admissible." * § 41 9. The Supreme Court of the United States has gone very far in admitting parol evidence to ascertain whether the principal or agent was intended to be bound, and the course of dealing between the parties, and the particular circum- stances of the case were allowed to come before the court.* ' Haile v. Peirce, 33 Md. 327. " McClellau v. Reynolds, 49 Mo. 314. See also Pratt v. Beaupre, 13 Minn. 190. » Hood V. Hallenbeok, 14 N. Y. S. C. (7 Hun), 367 (1876). ' Mechanics' Bank v. Bank of Columbia, 5 Wheat. 326. The check in this case was as follows : ISTo, 18. Mechanics' Bank of Alexandria, June 25, 1817. Cashier of the Bank of OoIumUa, Pay to the order of P. H. Minor, Esq., ten thousand dollars. $10,000. WM. PATON, JuN. It was proved that the payee. Minor, was the teller of the Mechanics' Bank ; 344 PRIVATE CORPORATIONS AS PARTIES. that the check was an official check cut out of the check book of the bank, and noted on the margin; that the money was drawn in behalf of and applied to the use of the Mechanics' Bank; and that other checks had been drawn by the cashier on behalf of the bank in the like form, in all respects save that he usu- ally added " Cas." or " Ca." to his name. Johnson, J., said: " It is by no means true, as was contended in argument, that the acts of agents derive their validity from professing, on the face of them> to have been done in the exercise of their agency. In the more solemn exercise of derivative powers, as applied to the execution of instruments known to the common law, rules of form have been prescribed. But in the diversified exercise of the duties of a genaral agent, the liability of the principal depends upon the facts, 1. that the act was done in the exercise, and 3. within the limits of the powers delegated. These tacts are necessarily inquirable into by a court and jury ; and this inquiry is not confined to written instruments (to which alone the principle contended for Could apply), but to any act, with or without writ- ing, within the scope of the power or confidence reposed in the agent; as, for instance, in the case of money credited in the books of a teller, or proved to have been deposited with him, though he omits to credit it." CHAPTER XIV. MTJOTCIPAL CORPOEATIONS AS PAKTIES TO NEGOTIABLE INSTEtT- MENTS. § 420. As to public or municipal corporations. — In a subsequent portion of this work the subject of the power of public corporations to execute negotiable instruments will be considered in detail, in connectioa with the matter of coupon bonds, which constitute by far the most important branch of public obligations. There is no doubt, however, that public corporations may have the power conferred on them to execute bills, notes, checks, and indeed all varieties of negotiable instruments. But the better opinion is, that such power does not exist, unless expressed or clearly implied.* The ordinary "orders, warrants, certificates of indebtedness, and obligations to pay issued by municipal corporations, if negotiable in form, will in general enable the holder to sue in his own name. But they are not negotiable instruments so as to exclude inquiry into the legality of their issue, or preclude defenses which are available as against the original payees.^ Powers con- ferred on municipal corporations which cannot be carried into execution without borrowing money, and giving obliga- tions payable in future, have been considered suificient to carry implied power to issue negotiable instruments ; but such powers are not implied from the usual powers of ad- ministration conferred in specific matters, and the power to ^^yj taxes to defray necessary corporate expenditures.^ It is ' Knapp V. Mayor of Hoboken, 39 N. J. (Law) 394 ; City of Williamsport v. Commonwealth, 84 Penn. St. 487 ; Dively v. Cedar Falls, 31 Iowa, 566 ; Clarke Des Moines, 19 Iowa, 200. ' Knapp V. Mayor of Hoboken, 39 N. J. L. R. 397 ; 1 Dillon on Municipal Corporations, § 4U6 ; see post, § 427, 435. ' Police Jury v. Britton, 15 Wall. 572, post^ § 423; Clemens on Corporate Se- curities, 36, 37. See also Mayor v. Ray, 19 Wall. 468. 346 MUNICIPAL COEPOEATIONS AS PARTIES. thought in Pennsylvania, that whenever the municipality- has authority to contract a debt by borrowing money or otherwise, so that the legislature must have contemplated its giving securities of some sort in payment, it has then by im- plication authority to evidence the same by bill, note, bond, Of other negotiable instrument/ But we do not perceive that mere authority to contract a debt carries with it neces- sarily the idea that money must be borrowed, or the author- ity to execute negotiable instruments.^ Municipal corpora- tions in order to exercise municipal functions, such as opening streets, &c., must come under obligation to pay those who do the work. Taxation is the ordinary method of raising revenue for such purposes, and debts so contracted should be paid out of the municipal revenues raised by tax- ation. This subject is elsewhere discussed in this work, an'd it is not necessary here to elaborate it.*^ The views of Judge Dillon, as expressed in a recent essay on the Law of Munici- pal Bonds, seem to us eminently sound, and worthy of ap- probation.* § 421. Officers empowered to act for public corporations. — The common council of a city or town is the legislative branch of the municipal government ; and when the city or town has the power to execute the instrument, that body would be the proper agency, by whom, or under whose directions, it should be exercised, and would have the ' City ef Williamsport v. Commonwealth, 84 Pfinn. St. 501. '' Ssepost, Vol. 3, § 1530. = SeeyosJ, Vol. 2, § 1537 et seq. ' Sp.e Dillon on Municipal Bonds, § 6, p. 12-13 et seq., -where it is said : " There is no resemblance between private and public or municipal corporations in this regard. The latter are not organized for trading, commercial or business purposes. They have in general but one mode of meeting their liabilities, and that is by taxation, and it is upon this resource that creditors must be taken to rely. For hundreds of years in England, such corporations have existed, with- out it ever being contended that tliey could, without express authority, issue commercial paper. * * * -^^e regard as alike unsound and dangerous the doctrine that a public or municipal corporation possesses the implied power to borrow money for its ordinary purposes, and as incidental to that, the power to issue commercial securities. The cases on this subject are conflicting, but tlie tendency is toward the view above indicated." MUNICIPAL OOEPOBATIONS AS PARTIES. 347 implied authority to execute the power of the corporation. But the executive officers of cities and towns, and the supervisors, trustees, or representative officers of a county, parish, or other local jurisdiction, invested with the usual powers of administration in specific matters, and the power to levy taxes to defray the necessary expenditures of the jurisdiction, have no implied authority to issue negotiable securities of such a kind as to he unimpeachable in the hands of bona fide holders. § 422. Thus, it has been held that the mayor of a city could not execute the bond of the city, although he had re- ceived express authority from the council to borrow money from a bank, and to execute a note therefor.^ So it has been held that county supervisors had no implied power to execute negotiable instruments. Field, J., saying : " Were it otherwise, it is easy to see that the county would be entirely at the mercy of the board."* Nor have the trustees or supervisors of towns, villages,^ and townships;* nor the selectmen of towns and villages ; ° nor the auditors of cities, ' Little Eock v. State Bank, 3 Eng. (Ark.) 337. " People V. Supervisors El Dorado Co. 11 Cal. 175. ' To same effect, see Hub- bard T. Town of Lyndon, 28 Wis. 675 ; Chemung Canal Bank v. Supervisors, 5 Den. 517. = Lake v. Trustees, 4 Den. 520; Hubbard v. Town of Lyndon, 28 Wis. G74. * Inhabitants v. Weir, 9 Ind. 224. ' Rich V. Errol, 51 N. H. 350. In Smith v. Inhabitants of Cheshire, 13 Gray, 318, it was held that an order or draft of the selectmen of Cheshire on the treas- urer of the town, payable to Westcott or bearer, was not negotiable ; and that an action could not be brought in any name but that of the party to whom it was issued. Bigelow, J., after saying that such orders were common, but the right of the holder to sue depended on the question, whether the selectmen had power by virtue of their office, and without special authority from the town, to issue to persons having claims on the town negotiable notes, bills of exchange, or orders, on which a town can be held liable to indorsers or holders other than those to whom they were originally issued, continued: '' The powers and duties of selectmen are not very fully defined by statute. Many of the acts usually • performed by them on behalf of towns, and which are recognized as within their appropriate sphere, have their origin and foundation in long-continued usage. The management of the prudential affairs of towns necessarily requires the exercise of a large discretion, and it would be quite impossible by positive enactment to place definite limits to the powers and duties of selectmen to whom 348 MUNICIPAL COBPORATIONS AS PARTIES. who are mere executive agents.^ And it has recently been held by the United States Supreme Court that there was no implied power to execute a negotiable bond in the police jury of a parish, Bradley, J., saying: "It^ would be an anomaly justly to be deprecated, for all our limited territorial boards charged with certain objects of necessary local admin- istration, to become fountains of commercial issues, capable of floating about in the financial whirlpools of our large cities."^ So there is no such implied power in the clerks of county courts, though such courts constitute the auditing boards of the counties ; ^ nor in the clei'ts of boards of supervisors to issue a negotiable warrant.* Nor in county judges, who are special limited agents ; ^ nor in the mayor and recorder of a city ; * nor in the mayor alone/ § 423. Difference between Public and Private Corpora- tions. — If private corporations, to increase their profits, em- tlie direction and control of such affairs are intrusted. Speaking generally, it may be said tliat they are agents to take the general superintendence of the busi- ness of a town, to supervise the doings of subordinate agents, and the dis- bursement of money appropriated by vote of the town to take care of its prop- erty and perform other similar duties. But they are not general agents. They are not clothed with the general powers of the corporate body for which they act. They can only exercise such powers and perform such duties as are neces- sarily and properly incident to the special and limited authority conferred on them by their office. They are special agents empowered to do only such acts as are required to meet the exigencies of ordinary town business. * * The rule of law is well settled that a special agent has no authority to bind his principal by a promissory note, bill of exchange, or other negotiable paper. Such power can be conferred only by the direct authority of the party to be bound." Taft V. Pittsford, 28 Vt. 289 (which seems to overrule Dalrymple v. Whiting- ham, 26 Vt. 245). But see Andover v. Grafton, 7 N.*H. 302, and Great Palls Bank v. Farmington, 41 N. H. 33. ' Bana v. San Francisco, 19 Cal. 488; People v. Gray, 23 Cal. 125; Keller v. Weeks, 22 Cal. 460. ^ Police Jury v. Britton, 15 Wall. 566 (1872). To same effect, see Bearman Y. Board of Police, 42 Miss. 238. " Parcel v. Barnes, 25 Ark. 261. * Clark v. Polk County, 19 Iowa, 348. ' Hyde v. County of Franklin, 27 Vt. 186; Daviess County Court v. Howard, 13 Bush. (Ky.) 102. ' Clarke V. Des Moines, 19 Iowa, 200. ' Short T. City of New Orleans, 4 La. Ann. 281 ; Goldschmidt v. New Orleans, 5 La Ann. 436. MUNICIPAL OOEPOEATIONS AS PARTIES, 349 bark in enterprises not authorized by their charter, still, as to third persons, and when necessary for the advancement of justice, the stockholders will be presumed to have assented, since it is in their power to restrain their officers when they transgress the limits of their chartered authority.^ But municipal corporations stand upon a different ground. They are not organized for gain, but for the purpose of govern- ment ; and debts illegally contracted by their officers cannot be made binding upon the taxpayers from the presumed as- sent of the latter.* The principle is applicable to both public and private corporations, as it is to individuals, that where they borrow money from a bank or other institution, it does not lie in their mouth to show that the transaction was of a character prohibited by the charter of such bank or other institution.' ' Lloyd V. West Branch Bank, 15 Penn. St. 174. It was held that, although a bank had no authority to receive certain notes on deposit, yet, if received, it was liable for them. Coulter, J., said: "The recognized and known function- aries, and especially the officers of a bank, are held out to the world as having authority to act according to the general usage, practice, and course of the busi- ness of such institutions." " If it were otherwise, there would be no safety for the public in doing busi- ness with any one of such institutions ; because their charters differ in some re- spects, and individuals cannot be presumed to carry these documents in their pockets as a vade mecum. Their acts, therefore, within the scope of such usage, practice, and course of business, will bind the corporation in favor of third per- sons transacting business with them, and who did not know at the time that the officer was acting beyond and above the scope of his authority. The property of stockholders is not bound by the irregular, unauthorized transactions or dec- larations of their officers, beyond the just sphere of their legal action. But if stockholders, without objection or interference, witness a course of business, usage, and practice on the part of their officers, this justifies third persons in believing that such usage of the officers is sanctioned by the principle and author- ized by law." " Bradley v. Ballard, 55 111. 430. ' Township of Pine Grove v. Talcott, 19 Wall. 619, and cases therein cited. CHAPTEE XV. DRAFTS OR WARRANTS OF ONE CORPORATE OFFICER UPON ANOTHER. SECTION" I. DEAFTS OE WAEEA1TT8 OF PEIVATE COEPOEATIONS. § 424. In the first place, as to drafts, orders, or toarrants of private corporations. — Sometimes, in dealing with corpora- tions, one agent or officer draws upon another, and in respect to private corporations the doctrine may be regarded as set- tled by weight of authoiity, and by principle, that, provided the act be not ultra vires, &n instrument so drawn is, in eifect, the draft of the corporation upon itself, and may be treated either as an accepted bill, or as a promissory note. Such drafts come within a statutory provision respecting " bills and notes for the direct payment of money." ^ They are frequently given for mere convenience in keeping accounts, and providing concurrent vouchers, and as it is not necessary, when bills and notes ai'e drawn payable at a particular place to aver or prove presentment there as a condition precedent to binding the acceptor or maker, so it is considered that it is not necessary to aver or prove presentment to the drawee in person, or at his place of business or residence, or to give notice of non-payment, before suing the corporation, which is regarded as acceptor or maker.^ This view has been applied in numerous cases: where the president and secretary of a water company drew upon its treasurer, and the corporation executed a mortgage signed in like manner to secure the draft ;^ where the secretary of a railroad com- ' Gilstrah t. St. Louis, &c. R. R. Co. 50 Mo. 491. ' See 1 Parsons, N. & B. 63. ' Dennis v. Table Mountain Water Co. 10 Gal. 389 (1838). A similar case is Hasey y. White Pigeon Beet Sugar Go. 1 Doug. Mich. 193 (1843). OF PRIVATE OOEPOEATIONS. 351 pany drew upon Its treasurer ; ' where the president of a railroad company drew upon its treasurer for a specified sum, stated as being amount due the payee for work done as con- tractor ; ^ where the agent of a trading corporation drew upon its treasurer, who accepted the draft.^ § 425. The contrary doctrine to that of the text at one time prevailed in Indiana,* but was subsequently overruled by the cases already quoted. It has prevailed also in Ala- bama, where it is held that a company draft of the railroad corporation on the treasurer, signed by the president, must be presented, and notice given of dishonor (unless such prece- dent steps be excused) before action can be sustained.^ § 426. In England, where the directors of an assurance company drew on its cashier, Wilde, C. J., said : " The com- pany indicate that they mean to pay, by a direction to their officer to pay, and they point out to whom payment is to be made. It appears to me that the instrument contains all that is essential to constitute, a promissory note." ^ ' Indiana, &c. R. R. Co. v. Davis, 20 Jnd. 6 (1863); Manx Ferry Gravel R. Co. V. Branegan, 40 Ind. 361, overruling earlier cases. • '' Fairchild v. Ogdensburgh, &o. R. R. Co. 15 N. Y. 337 (1857) ; approved in Mobley v. Clark, 28 Barb. 391 (1858). ' Shaw V. Stone, 1 Cush. 256, Shaw, C. J. : "The right of the holders to pro- ceed against the company as drawer was perfect, without demand on the accep- tor or notice to the indorsers. Walwyn v. St. Quintin, 1 Bos. & Pul. 652. Nor, Bupposing them, to be foreign bills, would a protest be necessary." * Marion, &c. R. R. Co. v. Dillon, 7 Ind. 401 (1856). The President of a rail- road company drew upon its treasurer. There was no allegation of presentment. Perkins, J., said: "If a man drew a bill or order directly upon himself payable immediately, it is his pi'omissory note, and may be sued on accordingly. In such case he is the payer as well as, drawer, and by the very act of drawing admits he is to pay, and that he has not then the money with which to make payment. But where the debt is due from a company, and it is the duty of one officer or set of officers to allow demands, and draw upon another officer who has the custody, and is charged with the duty of the disbursement of the company's funds for payment, such order must, as a general rule, be presented in a reason- able thne for payment." See, also, the overruled cases, Marion v. Logansport R. R. Co. V Ind. 648 (1856); English v. Trustees, 6 Ind. 438 (1855) ; Marion, &c. R. R. Co. V. Hodge, 9 Ind. 163 (1857). ' Wetumpka, &c. R. R. Co. v. Bingham, 5 Ala. 663 (1843). • Allen V. Sea, Fire & Life As. Co. 9 C. B. 574. 352 • DRAFTS OE WAKEANTS SECTION II. DEAFT8 OE WARE ANTS OF MUNICIPAL OOEPOEATIONS. § 427. In the second plaoe, as to municipal drafts, orders, or tvarrants. — Frequently a draft, order, or warrant is drawn by one officer of a municipal corporation upon another ; or by the selectmen of a town, or supervisors of a county, upon an officer, for the payment of corporate indebtedness to the payee. The intention in such case is, as a general rule, to furnish vouchers to the proper disbursing officer, and not to put negotiable instruments in circulation. And it has been generally, and as we think justly, considered that such drafts, orders, or warrants are not negotiable instruments, and can- not be regarded either as bills of exchange or promissory notes, cutting out equities as against the corporation — on the ground that there is no implied authority in such officers to execute negotiable instruments. It has been so held, where the selectmen of a town drew an order on the treasurer pay- able to bearer ; ^ where the auditor of a county drew upon the trf asurer ; ^ where the auditor of the city of San Fran- cisco drew a warrant upon the treasurer, purporting on its face to be for a certain sum " as ordered by the board of su- pervisors ;" ^ where county judges drew a warrant upon the . ' Smith V. Cheshire, 13 Gray, 318; ante, § 1. ' People V. Gray, 23 Cal. 125; to same effect see Clark v. Polk County, 19 Iowa, 248; Keller v. Hicks, 32 Cal. 460. ^ Dana v. San Francisco, 19 Cal. 490 ; Baldwin, J., saying: '• We think that the plaintiff, counting alone upon the county scrip or warrants, as negotiable in- struments, evidencing of themselves an indebtedn^s on the part of the county, cannot maintain his pretensions. This seems to be decided by the case of The People V. Supervisors of El Dorado County, 11 Cal. 170. The reason is, that the auditor had no authority to draw a bill of exchange, but he can only, in certain cases, isaue warrants upon the order of the supervisors, or the allowance by the board, of an account which is chargeable as a debt upon the county. The warrant is not intended to constitute a new debt, or evidence of a new debt, against the county, but is the prescribed means the law has devised for drawing money from the county treasury. It may be very true, that the warrant, as an open ac- count, may be assigned, and the assignee be protected as a holder of a claim against the county. But this would be, not because the indorsement of the war- OP MUNICIPAL OOEPOKATIONS. 353 treasurer;^ where the mayor and recorder of a city drew a warrant on the treasurer payable to " A. H. W. or Ijearer, out of any moneys in the general fund not otherwise appro- priated;'"* where the supervisors of a county drew upon the treasurer;* where the clerk of the township board of educa- tion drew upon the township treasurer;* where the direc- tors of a school district drew upon the township treasurer.^ So it has been held that the mayor and recol-der of a city have no implied power to execute negotiable warrants.^ § 428. It has been held, however, in a number of cases that where corporate authorities are empowered by law to draw warrants, or orders in payment of debts, that they will be deemed negotiable if phrased in negotiable words, and may be sued upon by a transferee, like any other negotiable instrument. Thus where the charter of the city of Brook- lyn required an order or warrant of the common council on the treasurer, for drawing money from the treasury,, a draft on the treasurer running, " Pay Alexander Lynn, or order, fifteen hundred dollars for award No. 7, and charge to Bed- ford Road Assessment," and signed by the mayor and the clerk of the common council, was held to be a negotiable bill of exchange.^ rant carried with it the legal title of the scrip to the assignee; as. an indorsee under the law merchant, but because the transaction would be, in equity, the as- signmeut of the debt on which tlie scrip issued, and an authority to the assignee to receive the money. The question here is, not whetlier th« county had the power to make a bill of exchange, but whether the auditor, when under the statute he issues a warant, has the power to give it the form and qualities of such an instrument. We think he has not, and that the paper, as here pre- sented, has no such effect, if indeed it was so designed." "If the plaintiff has a valid claim upon the county, it ought to be paid; but he must proceed to enforce it in some other mode." • Hyde v. County of Franklin, 27 Vt. 186. ' Clark V. Des Moines, 19 Iowa, 200. ' Chemung Canal Bank v. Supervisors, 5 Denio, 517. • Steinbeck v. Treasurer, &c. 22 Ohio St. R. 144 ; see State v. Huff, 63 Mo. 358. ' School Directors v. Fogleman, 76 111. 189. • Clark V. Des Moines, 19 Iowa, 201. 'Kelly V. Mayor of Brooklyn, 4 Hill, 263, Cowen. J.: "The draft was signed, and countersigned according to the statute^ by the mayor and clerk. Vol. I.— 23 354 DEAFTS OE WAEEANTS So, where the clerk, under the order of court, drew a warrant paj'able to A. B. or bearer, according to statutory form, it was held that it was negotiable by delivery, and the creditor could not recover against the county without pro- ducing it.^ § 429. Indorsements. — When a municipal corporation war- rant is deemed a commercial instrument, negotiable like an ordinary bill of exchange, the party who transfers it with his indorsement is subject to the liabilities and entitled to the privileges of an ordinary in dorser of a negotiable instrument.** But when such an instrument is regarded as a mere voucher, and not a bill or note, the transferrer by indorsement is not deemed an " indorser," in the commercial sense of the term, and could not be held liable as such, though the form of the paper be negotiable.^ He would be liable, however, to re- fund the consideration if the instrument were not valid and legal according to its purport.* § 430. Presentment. — In the case of municipal corporations, it has l)een considered that an order by an officer or repre- sentative upon the disbursing authorities must be presented before the corporation can be sued, though, perhaps, no no- tice of dishonor would be necessary. This view was applied There is nothing in the statute expressing or implying an inhibition to make the warrants negotiable." ■'Independently of any statute provision, a corporation may issue negotiable paper for a debt contracted in the course of its proper business. Moss v. Oak- ley. 2 Hill, 265. This is a power incident to all corporations, and no provision in its charter or elsewhere, merely directing a certain form in affirmative words, should be so construed as to take away the power. The draft in question was issued by the agents of the defendants, acting according to the usual course in such matters. A disavowal by the corporation, if allowed, might operate as a fraud upon plaintiff, and upon others. The money, when drawn for, or soon after, was in the possession of the corporation ; and it stood a debtor to the plaintiffs 2;ro tanto:' But see contra, Clark v. Des Moines, 19 Iov;a, 290; Short v. New Orleans, 4 Lq. Ann. 281 ; Goldschmidt v. New Oilcans, 5 La. Ann. 436. ' Crawford County v. Wilson, 7 Ark. (2 English) 219; see Sweet v. Carver County, 16 Minn. 107; Comm'rs of Floyd County v. Day, 19 Ind. 451. ^ Bull V. Sims, 23 N. Y. 571. ' Keller v. Hicks, 22 Cal. 460. ' Keller v. Hicks, 23 Cal. 400. OF MUNICIPAL COKPOEATIONS. 355 in Maine and in Vermont, where the selectmen of a town drew upon its treasurer.^ But other authorities, following the analogies of private corporations, regard such orders like bills of exchange di'awn by a party upon himself, and which may be treated either as accepted bills or as promissory notes; and hold, therefore, that the corporation is bound absolutely for the debt without either presentment or notice." § 431. When the warrant or order has been refused pay- ment, the creditor may sue upon the original indebtedness of the corporation.* Where there was no express or implied power in the officer who executed it to issue the warrant, the ' Varner v. Nobleborough, 3 Greenl. 136 (1833), Mellen, C. J.: "The select- men were the agents of the town, drawing the order on their account on the town's banker. The case may be justly compared to that of a draft by a man on his banker, or a note payable at his banker's, or by his agent. In which cases it seems settled that the draft or note must be presented at the place appointed. But, in addition to the authority of decided cases, so nearly resembling this in principle, a strong argument against the present action arises out of the general — perhaps we may say universal — mode of conducting the affairs of a town in the settlement of accounts and payment of debts due from the corporation to individ- uals. Persons transacting business according to an established and well-known usage, are presumed to assent to such usage and contract in reference to it. Now, it is universally understood that selectmen, who draw an order on behalf of the town in favor of any of their creditors, have not the funds of the town in their hands, but that they are in the possession of the treasurer. When any cred- itor of the town receives an order on the treasurer for the amount due to him, he must be considered as understanding tliese facts and assenting to this mode of receiving payment, and as accepting the order under an implied engagement to conform to the established usage, and present the order to the treasurer for pay- ment. Good faith requires him to do this, and the law considers him as promis- ing so to do. If, on presenting the order, payment be refused, the town which drew the order on itself must be answerable instanter, for the reason before assigned. But no sound reason can be given why a town should be subjected to the perplexity and costs of an action, before the payee of an order will give him- self the trouble to do his duty and request payment of the money due him accord- ing to the terms of it. We have no reason to believe but that the contents of the order would have been promptly paid on application at the treasury. Justice, as well as law, are against (he plaintiffs according to the facts before us." Pease v. Cornish, 19 Me. li)3; Dulrymple v. Whitingham, 36 Vt. 346; see Kelleyv. Mayor of Brooklyn, 4 Hill, 365. - Steel v. Davis County, 3 G. Greene (Iowa), 469. ' Short V. City of New Orleans, 4 La. Ann. 381; Goldschmidt v. The Same, 5 La. Ann. 436. 336 ' DKAFTS OR W'AEEANTS plaintiff cannot make it even the prima facie ground of re- covery, and must resort to the original consideration;^ but when issued by an ofBcer having a general power to issue warrants, it will be presumed to be upon a consideration, and it" there be any defense, it must be pleaded and proved by the defendant." § 432. It is not incumbent upon a creditor to take a town order in discharge of a debt due him, although it is the usage of the town to settle its indebtedness by giving an order of its selectmen on the treasurer, similar to that offered.^ But if he takes such order, he cannot recover the amount of the debt, as it seems, without producing it.* And if once paid, it cannot be the subject of recovery even by a 'bona fide holder, at least where it is not deemed a negotiable instrument.^ When such warrants or orders are issued as vouchers, they do not bear intei'est after demand and refusal to pay ; * but some of the authorities which recrard them as uegotialde instruments, hold that interest is I'ecoverable after dishonor.' § 433. Payable out of particular fund. — Where a warrant or order is made payable out of a particular fund, it creates no general charge aj^ainst the corporation, but only against the fund which is designated.^ It has been so held where tbe order contained the memorandum, " and charge the same to account of Union avenue ; " ^ and where it was payable out of "the road and canal fund."^" But if the memorandum merely indicate the considera- tion, or the source of reimbursement, it would be different. ' AllisoQ T. Juniata County^ 50 Penn. St. 353; see Dana v. San Francisco, 19 Cal. 401. •' Comm'rs of Floyd County v. Day, 19 Ind. 451. = Benson v. Cannel, 8 Green!. 110; Willey v. Greenfield, 30 Me. 453; Dillon on Municipal Corporations, Ist ed. p. 398, § 410. ' Sweet V. Carver County, IG Minn, 107; Crawford County v. Wilson, 7 Ark. 319. ' Chemung Canal Bank y. Supervisorg, 5 Den. 517. "Allison V. Juniata County, 59 Penn. St. 353 (1865); Dyer v. Covington Township, 19 Penn. Ot. 300 (1853.) ' Com'rs of Leavenworth v. Keller, 6 Kans. 518. " Lake v. Trustees, 4 Den. 530 ; Kingsberry v. Pettis County, 48 Mo. 207. ° Luke V. Trustees, mpia. '" Kingsbeiry v. Pettis County, sufra. OP MUNICIPAL CORPORATIONS. 357 So held where there was written, " it hemg his proportionate part of the surplus revenue fund;"^ so where it ran, "for award No. 7, and charge to Bedford Road assessment ; " ^ so where it was payable " out of any funds belonging to the city not before specially appropriated." ^ § 434. Suit hy Transferee. — Whether or not the indorsee or assignee of a corporation warrant or order drawn by one officer upon another, can sue the county or city in his own name, is another question which has frequently arisen. Where such papers are deemed negotiable, an indorsee or transferee may of course sue upon them as upon any other negotiable instrument.* But where they are regarded as mere vouchers drawn by one officer upon another for con- venience in disbursing funds, the contrary view has generally prevailed — that the transferee cannot sue upon them in his own name.^ § 435. By some authorities it is considered that though town or country orders paj'^able to bearer, or payable to order and indorsed, are not commercial paper in the hands of bona fide indorsees or transferees for value, so as to exclude evidence touching the legality of their inception, or so as to cut out defenses which would be good against the payee; yet they may be sued upon by the indorsee or transferee in his own name, in like manner as the assignee of a non-nego- tiable instrument." ' Pease v. Coraisb, 19 Me. 191. ' Kelly v. Mayor, 4 Hill, 363. = Bull V. Sims, 23 N. T. 570. * Kelly V. Mayor, 4 Hill, 263; Dalrymple v. Town of Whittingham 36 Vt. 345 (but see Hyde v. County of Franklin, below) ; Crawford County v. Wilson, 7 Ark. (3 English) 219; Commissioners of Leavenworth v. Keller, 6 Kans. 510; see Great Falls Bank v. Farmington, 41 N. H. 33. ' Hyde v. County of Franklin, 27 Vt. 185 ; Allison v. Juniata County, 50 Penn, St. 353. Thompson, J. : " It was distinctly said in that case (Dyer t. Covington Township, 7 Harr.[19 Penn. St.] 300, that an action does not lie on such paper, and in this I entirely concur. It is neither a bill, note, check, nor contract, nor is it a satisfaction of the original indebtedness, and the suit should ordinarily be on that." See Smith v. Cheshire, 13 Gray, 318. " Emsry v. Mariaville, 56 Me. 316; Sturtevant v. Liberty, 46 Me. 459; Clark V. Polk County, 19 Iowa, 343; Andover v. Grafton, 7 N. H. 303, overruled by Great Falls Bank v. Farmington, 41 N. H. 33. This view is taken by Judge Dillon. Dillon on Municipal Corporations, Ist ed. p. 394, § 403. See anU, § 430. CHAPTEE XVI. THE FEDEEAL ANB STATE GOVERNMENTS AS PAKTIES TO NEGO- TIABLE INSTRUMENTS. SECTION T. GENERAL PEINCIPLES AS TO GOVEKKMENTAL LIABILITT, AND LIABILITY OF AGENTS. § 436. There is no doubt that when an officer of the gov- ernment, Federal or State, who is authorized to bind the gov- ernment as drawer, maker or accei^tor of a negotiable instru- ment, draws or accepts a bill, or makes a note in behalf of the United States, or the State which he represents, its va- lidity cannot be questioned when it has passed into the hands of a hona fide holder for value, without notice of any defect. The government would then be bound by its negotiable paper just as an individual. This doctrine was laid down by the United States Supreme Court in a case where the Bank of the Metropolis, being sued for a balance due the United States, pleaded as a set-off a draft drawn by Edwin Porter on Richard C. Mason, treasurer of the j)ost-office de- partment, at ninety days, and accepted by him as treasurer; and also four drafts, at ninety days, drawn by James Eeeside on Amos Kendall, Postmaster General, and " accepted on con- dition that his contracts be complied with." The right of the officers to accept, on behalf of the government, was not questioned, and the court held them valid, declaring that: " When the United States, by its authorized officer, becomes a party to a negotiable paper, they have all the rights, and incur all the responsibilities, of individuals who are parties to such instruments ; " and that all the bank had to look to " was GOVERNMENTAL LIABILITY, 359 the genuineness of the acceptance and the authority of the officer to give it." ^ At the present time there seems to be no officer of the Federal Government who has authority to bind it as a party to a bill or note,'* § 437, In the case of The Floyd Acceptances, 1 Wall. 667, before the United States Supreme Court, the authority of government officers to draw or accept bills was discussed in a suit upon the following instrument : Washington, Novenaber 28, 1859. $5,000. Ten months after date, for value received, pay to our own order, at the Bank of the Republic, New York city, five thousand dollars, and charge to account of our contract for supplies for the army in Utah. Russell, Majors & Waddkll. Hon. J. B. Floyd, Secretary of War. [Indorsement.] Russell, Majors & Waddell. [Acceptance.] War Department, November 28, 1859. Accepted : John B. Floyd, Secretary of War. Suit was brought by a bona fide indorsee for value, but the court held that he could not recover, although it was proved that the army in Utah was in imminent danger from cold and starvation at the time when the secretary accepted the bill in order to secure supplies to save it, on the ground that there was no usage or practice by which the Secretary of War was authorized to accept such bills in behalf of the United States; and that although it was then and had been the practice of the heads of departments to accepts drafts or bills for the transmission of funds to disbursingf officers, or for the payment of those serving in distant stations, or for services rendered — such practice did not extend to cases of ' United States v. Bank of Metropolis, 15 Pet. 377. See this case explained in The Floyd Acceptances, 7 Wa'l. 666. ' The Floyd Acceptances, 7 Wall. 666. 360 GOVERNMENTS AS PARTIES. this kind, and there was no express authority to any office of the government to draw or accept bills of exchange.^ § 438. A warrant issued by the auditor of a State upon the treasurer for an amount due a creditor is not a negotiable instrument.^ And it has been held by the United States Supreme Court that an order drawn by the government of the United States upon the government of France, for an amount due by treaty stipulation, was not a bill of exchange in the sense of the law merchant.* § 439. Foreign governments may also be parties to nego- tiable instruments. In a case before the U. S. Supreme Coui't, the bills in suit were signed : " Le-Tombe, Le Consul General," and directed : " Au citoyen Payeur General des defenses du Departeraent de . A la Tresorerie Ra- tionale a Paris." They bore a certificate showing that they had been registered at the consulate of France for tlie port of Philadelphia, and a declaration by Adet, the minister plenipotentiary of the French Republic, that the faith of the French nation was pledged for their payment, and requesting the proper officer of the treasury to pay them. The Court was unanimously of opinion that the bills were drawn upon account of the French government, and that Le Tombe was not personally bound.* ' The Floyd Acceptances, 7 Wall. 60G, Nelson, Grier, and Clifford, JJ., dis- sented. Miller, J., who delivered the opinion of the court, said : " The United Btates V. Bank of Metropolis is the case mainly relied on as establisliing tlie doc- trine contended for by plaintiffs, and is confidently asserted to be conclusive of the cases under consideration, unless overruled. * * * The opinion of the court, after stating the facts, opens with the declaration that, ' "when the United States, by its authorized officer, becomes a party to negotiable paper, they have all the rights, and incur all the responsibilities, of individuals v;ho are parties to suoli instruments.' And further on it is said, that ' an unconditional accept- ance was tendered to it (the bank) for discount; * * * all it had to look to was the genuineness of the acceptance, and the authority of the officer to give it.' If this language has any significance, it is that the authority of the officer, like the genuineness of the signature, is always to be inquired into at the peril of the party taking an acceptiince purporting to bind the government." = State V. Dubuclet, 23 La. Ann. 2G7. ' United States v. Barker, 12 Wheat. 559. ' Jones, Indorsee v. Le Tombe, 3 Dall. 384. GOVERNMENTAL LIABILITr. 361 § 440. Governmental and private agents. — In dealing with the officers and agents of government, whether Federal or State, it is important to remember that they stand in a different relation to their principals from private agents. Private agents, who are held out as such by their principals to the public, will bind them whenever they act within the apparent scope of their authority. And although they vio- late instructions, it will be no defense to the principal, who, having clothed them with the semblance of authority, cannot deny its reality. But with public agents it is entirely differ- ent. Their powers and duties are defined by statute, which is notice to the world of the limitations to their authority; and no pretension of authority, or customary action, can am- plify that authority beyond the statutory limitation.^ This rule is absolutely necessary to protect the public inter- est against losses and injuries arising from the fraud, mis- take, or rashness, or indiscretion of public agents.^ " It is better that an individual should occasionally suffer from the mistakes of public officers or agents, than to adopt a rule, which through improper combinations or collusion, might be turned to the detriment and injury of the public." ^ The dif- ference in the statement of the rule as applicable to public and private agents is, however, rather a difference arising from the customary difference of facts in the circumstances under which they act, than in the principle applicable to them. For even as to private agents, the principal is not bound by their acts in excess of authority, when the party dealing with them has an opportunity to inspect that au- thority, and observe its limitations. This opportunity is rarely afforded in private agencies ; whereas the statute of public record is a conspicuous notice to the world of the public agent's power. § 441. Coupon bonds issued by the Federal * and State ' Pierce v. United States, 1 N. H. 370; Ths Floyd Acceptances, 7 Wall. 663. ' State of Missouri t. Bank of Missouri, 45 Mo. 528, Wagner, J. ' Whiteside v. U. B. 93 U. 8. (3 Otto), 357 ; Mayer v. Eschback, 17 Md. 383. ' Texas v. Hardenberg-, 10 Wall. 58; Texas v. White, 7 Wall. 700; Seybel v. National Currency Bank, 54 N. Y. 388; Spooner v. Holmes, 102 Mass. 503. 3G2 GOVERNMENTS AS PARTIES. governments/ are established as in all respects negotiable instruments ; and the rights of parties are ascertained, as a general rule, by the same principles ^vhich apply to like in- struments issued by corporations. The treasury notes of the United States are deemed negotiable instruments, and their negotiability is not affected by the fact that they are issued under the treasury seal, nor by the fact that when issued the name of the payee is left blank.^ A clause in such a note giv- ing the holder the option, upon maturity, to convert it into bonds, does not destroy its negotiability so long as the option is not exercised, nor is negotiability destroyed by a clause reserving the option to the government to pay in coin or in paper money. But when the holder exei'cises the option given him, as by indorsing on the note, " Pay Secretary of the Treasury for redemption," the negotiability of the note is destroyed.^ In a recent case involving these questions, Dwight, Commissioner, said: "There is nothing to prevent the holder from taking bonds at any time, though the notes cannot be actually converted into bonds until maturity. Until an election is exercised they remain treasury notes; when that occurs their function is at an end, and the holder has only a claim against the United States for the pi'oper amount of bonds. This is a chose in action, and not negotia- ble."* If the government, instead of the holder, had the option to pay or convert notes into bonds, they would not be negotiable.^ In a recent case, the United States Supreme Court described the character of these notes; and held that after maturity the purchaser took them subject to the rights of antecedent holders, to the same extent as in other dishon- ored commercial paper." ' state of Illinois v. DelaSeld, 8 Paige, Ch. 537; Arents v. Commonwealth, 18 Grat. 750. ' Dinamore v. Duncan, 57 N. Y. 573; Vermilye v. Adams Express Company, 21 Wall. 138. ' Id. * Diusmore v. Duncan, 57 N. Y. 580. ' Vermilye v. Adams Express Co. 21 Wall. 138. " Vermilye v. Adams Express Co. supra, Miller, J., saying: " The first thing which presents itself on this state of facts is to determine the character of those notes as it affects the law of their transferability at the time they were purchased GOVERNMENTAL LIABILITY. 363 If a treasury note be drawn payable to order, and in- dorsed specially to a certain person, a thief or finder cannot acquire, or pass a title valid against the indorser, or the true owner — as every person taking it would have notice by the special indorsement, that only the indorsee could give title.^ by appellants, for notwithstanding some testimony about the erasure of an in- dorsement on some of the notes, we are of opinion that it was so skillfully done as not to attract attention with the usual care in examining such notes given by bankers. " They were the ordinary form of negotiable instruments, payable at a definite time, and that time had passed and they were unpaid. This waa obvious on the face of the paper. The fact that the holder had an option to convert them into other bonds does not change their character. "That this option was to be exercised by the holder, and not b}' the United States, is all that saves them from losing their character as negotiable; paper; for if they had been absolutely payable in other bonds or in bonds or money at the option of the maker, they would not, according to all the authorities, be prom- issory notes, and they can lay claim to no other form of negotiable instrument. As it is, they were negotiable promissory cotes nine months overdue when pur- chased by appellants. They were not legal tenders, made to circulate as money, which must, from the nature of the functions they are to perform, remain free from the liability attaching to ordinary promises to pay after maturit}'. Nor were they bonds of the class which, having long time to run, payable to holder, have become by the necessities of modern usage negotiable paper, with all the protection that belongs to that class of obligations. These were simply notes, negotiable it is true, having when issued three years to run, which three years had long expired, and the notes were due and unpaid. " We cannot agree with counsel for appellants, that the simple fact that they were the obligation of the government takes them out of the rule which subjects the purchaser of overdue paper to an inquiiy into the circumstances under which it was made, as regards the rights of antecedent holders. The govern- ment pays its obligations according to their terms with far more punctuality than the average class of business men. The very fact that when one of its notes is due the money can certahily be had for it, if payable in money, should be a warning to the purchaser of such au obligation after its maturity to look to the source from which it comes, and to be cauiious in paying his money for it. In the case of Texas v. White (7 Wall. 700), the bonds of the government issued to the State of Texas were dated July 1, 1851, and were redeemable after the 31st day of December, 1864. This court held that after that date they were to be considered as overdue paper, in regard to their negotiability, observing that in strictness, it is true, they were not payable on the day when they became re- deemable, but the known usage of the United States to pay all bonds as soon as the right of payment accrues, except when a distinction liotween redeemability and payability is made by law and shown on the face of the bonds, requires the application of the rule respecting overdue obligations to bonds of the United States which have become redeemable, and in respect to which no such distinc- tion is made." ' Myers v. Friend, 1 Rand. 13. See post. § 441. 364 GOVEEKMENTS AS PARTIES. § 442. When a State borrows money on bonds issued for that purpose and pledges a certain fund for the interest to accrue thereon, such pledge has been deemed a part of the contract with the holders of the bonds, and tliat to divert it would impair the obligation of the contract, — which it is beyond the power of the State to do,^ — -if the legislature of a State authorize its oiBcers to borrow money and sell its bonds or stocks for that purpose at par value, a sale at a rate less than par value would be void ; and a sale of bonds or stocks which draw interest from the day of sale, but which ai'e to be paid for in future instalments only, and without interest, is a sale at less than par value.^ § 443. Whenever a public officer makes a contract or en- gagement, which is fairly within the scope of his authority, the presumption of law is that he made it ofHcially, and in his public character, unless the conti'ary appears by satisfactory evidence.^ Accordingly, where bills, notes or other evidences of debt are made payable to an ofiicer of the United States, and it appears, either from their face or extraneous evidence, that they were for the benefit of the United States, the ac- tion should be brought in the name of the United States, and, under like circumstances, if payable to a State officer, suit should be brought in the name of the State. These doc- trines were enforced where a bill, payable to " Thomas T. Tucker, Treasurer of the United States," was sued on in the name of the United States ; * where a note was payable to " I. E. F., U. S. Indian Agent, his successors in office, or ' StatB V. Cardozo, 8 Ricbardson (S. C.) 71 ; see post, § 446, 448. = State of Illinois v. Delafield, 8 Paige Ch. 537. = Park V. Ross, 11 How. 374; Balcombe v. Northrup, 9 Minn. 170. * Dugan V. U. S. 3 Wheat. 173. Marshall, C. J., said: "If it be generally true that when a bill is indorsed to the agent of another for the use of his prin- cipal, an action c.innot be maintained in the name of such principal (on which point no opinion is given), the government should form an exception to such rule, and the United States be permitted to sue in their own name, whenever it appears not only on the face of the instrument, but from all the evidence, that they alone were interested in the subject-matter of the controversy." See also, U. S. V. Boyce, 2 McLean, 353. LIABILITY OF GOVERNMENTAL AGENTS. 365 order, for the use of the Winnebago Tribe, etc. ; " ^ where a note was payable to " James Irish, Land Agent of Maine." ^ § 444. No official or agent of the government, Federal or State, can ratify a contract, save one capable of making it for the government. Thus, 'the legislature of Illinois, having authorized the issue of bonds in a particular way, the recognition of the governor of the validity of bonds issued in a different way could impart no validity to them. "For," said the court, "no person can confirm an unauthor- ized agreement, made by another, unless he had himself the power to authorize the making of such an agreement. As the sovereign power of the State, by a legislative act, had prohibited any of its officers or agents from selling its stocks below their par value, it follows, of course, that nothing short of a law of the State, proceeding from the same au- thority, can legalize such a transaction." ® But if the legis- lature had the power to authorize their issue, its ratification subsequently would be equivalent.* And such ratification might be absolute, or conditioned upon a future event, in which case, the condition being fulfilled, it would become absolute.'' § 445. As to the Uahility of puhlic agents, a different rule prevails from that applicable to private agents. lu the ordinary course of things, an agent contracting on behalf of the government or of the public, is not personally bound by such a contract, even though he would be by the terms of the contract, if it were an agency of a private nature. The reason of the distinction is, that it is not to be presumed eith- er that the public agent means to bind himself personally in acting as a functionary of the government, or that the party dealing with him in his public character means to rely on his individual re sponsibility." If, however, a functionary of the ' Balcombe v. Northrup, 9 Minn. 173. ' State V. Boies, 3 Fairf. 474; Irish v. Webster, 5 Greenl. 171. ' State of Illinois y. Delafield, 8 Paige Ch. (N. V.) 543. * Opinion of Court to the Governor, 49 Mo. 335. ' Butler, Treasurer v. Dubois, Auditor, 39 111. 105. • Walker v. Christian, 21 Grat. 297; Hodgson v. Dexter, 1 Cranch, S. C. 345; 36(5 GOVERNMENTS AS PARTIES. government, without disclosing his oiBcial character, or the public nature of the transaction in the instrument, issued a negotiable instrument in his own name, it would seem clear that a bona fide holder, without notice, might hold him indi- vidually responsible. SECTION II. STATE SECtlEITIES MADE EECEITABLE FOE TAXES. § 446. By section ]0, art 1, of the Constitution of the United States, it is provided that no State shall pass any law "impairing the obligations of contrticts." This provision was intended to prevent interferences by State legislatures with the relations of debtors and creditors ; and it has been urged with great force, that it was not designed to apply to undertakings of States themselves, and that one legislature could not pass any act which a subsequent one could not repeal, although such repeal would abrogate or impair engagements entered into under pre-existing legislation. But it has been decided that a State may be a contracting party within the meaning of the Constitution, and that, if a legis- lative body make a contract on behalf of the State, no sub- sequent session, and no new legislative body, can repeal the law by which it was made, so as to impair the obligation contracted.^ § 447. These principles have an immediate bearing on State and corporation securities, arid have been applied to them in a number of cases. In 1836, the les-islature of Arkansas chartered " The Bank of the State of Arkansas," the whole capital of which belonged to the State. Its charter provided " that the bills and notes of said institution shall be received in all payments of debts due to the State of Arkansas," but this provision was repealed by the legis- lature in 184.5. At the time of its repeal a large amount of Macheath, v. Ilaldimancl, 1 T. R. 173 ; Story on Agency, §§ 306-312 ; see Edwards on Bills, CO. ' New Jersey v. Wilson, Cranch, 164. STATE SECURITIES MADE EECEIVABLH FOE TAXES. 367 the issues of the bank were in circulation, and a judgment debtor of the State, after the repeal, tendered the amount due by him in bank notes to the collecting officer, who re- fused to receieve them. The Supi'eme Court of the United States held that the legislation aforesaid constituted a con- tract which no subsequent legislation could impair; and that the collecting officer might be compelled by mandamus to receive the notes tendered.^ In a subsequent case which went up from Tennessee, a similar decision was rendered by the same tribunal, which held the contract of the State to receive the bank notes for all public dues iri'epcalable. This guaranty was thought in no sense a personal one, but at- tached to the notes themselves as much as if written on the back thereof; that it went with them everywhere as long as they existed, and was a standing invitation to all per- sons to receive them, even though, after the notes were is- sued, the law declaring their receivability should be re- pealed. "The quality of negotiability is annexed to the notes in words that cannot be misunderstood, and which indicate the purpose of the legislature, that they should be used by every one indebted to the State." ^ § 448. In Virginia, the decisions of the United States Supreme Court have been followed. It appeared in the case presented that the State of Virginia, by her legislature, had undertaken to issue coupon bonds for two-thirds of her entire indebtedness, the I'emaining third being assumed to be the proportion which should be discharged by West Virginia, which had been forcibly, and without Virginia's consent, torn out of her boundaries. It was pz'ovided in the act of the Virginia Assembly that the coupons of the new issue of bonds should be receivable " at and after maturity for all taxes, debts and demands due the State." Some of her creditors accepted this adjustment of their bonded debt, and a holder of some of the coupons ten- ' Woodruff V. Trapnall, 10 How. 190. ' Furman v. Nichol, 8 Wall. 44. 368 GOVERNMENTS AS PARTIES. dered them to the slierifF of Richmond in payment of taxes. In the meantime, the law authorizing the receijDt of the cou- pons for taxes and other demands had been repealed, and the Assembly had passed an act prohibiting the collecting officers of the State from receiving the coupons in discharge " of taxes or other demands of the State now due, or that shall hereafter become due." The Supreme Court of Ap- peals held that the prior act constituted a contract between Virginia and her creditors who accepted its terms, and was upon sufficient considerations ; and that no subsequent legis- lative act could repeal the provision that the coupons issued should be receivable for taxes ; and, accordingly, sustained the peremptory mandamus which had been awarded com- pelling the sheriff to receive them.^ But in subsequent cases the Court held that the legislature had full power to repeal the funding act as against all creditors who had not accepted its terms at the time of such repeal.^ ' Antoni v. Wriglit, 22 Grat. 833. Bouldin, J., with whom concurred Mon- cure and Christian, JJ., delivered the opinion of the Court, which is a model of judicial stylo. Staples, J., dissented. The current of decisions is so strong in favor of the views stated in the text that they may be regarded as settling the law. Many learned lawyers believe, however, that they rest upon a mistaken no- tion — that States were never contemplated as contracting parties, in that clause of the Constitution which prohibits the passage of laws by States which impair the oljligation of contracts; aud we can but think that the decisions quoted have sacrificed the .^ipirit to the letter of the law, and shorn States of their sover- eignty, under color of a constitutional provision only designed to exact good faith from individuals in their denlings with one anotlier. Sec also Clarke, Ex parte, S. C. of Va.. reported in Va. Law Journal for April, 1878, where it is held that coupons attached to bonds issued under the Virginia Fuuding Act, aie receivable for fines. ^ Wise V. Rogers, 34 Grat. 169; Maury v. Rogers, Id. BOOK III. THE ]!fEGOTIATION OF THE INSTEUMENT. CHAPTER XVII. PRESENTMENT FOR ACCEPTANCE. SECTION" I. NATUEE OF AND NECESSITY FOE PEESENTMENT FOE ACCEPTANCE. § 449. It is the right of the holder of a bill to pre- sent iT for, and insist on its acceptance, even so late as the day before it falls due. If not presented for accept- ance until the day it falls due, the right to demand ac- ceptance becomes merged in the right to demand pay- ment. If the bill be presented for acceptance before it falls due, it beomes dishonored if acceptance be refused ; and notice must be forthwith given to the parties whom it is intended to charge.* And suit may at once be instituted against the drawer, and against the indorsers.^ This rule of commercial law is so general and binding that a statute of a State which forbids a suit from being brought in such a case until after the maturity of the bill, can have no effect upon suits brought in the United States courts. The requisition of a State statute like this would be a violation of the gen- eral commercial law, which a State has no power to impose, and which the courts of the United States would be bound ' Chitty on Bills (13tb Am. ei.), 309; Goodftll v. DoUey, 1 T. R. 713; see Chapter XXIX, on Notice, vol. 3; Bunk of Washington v. Triplett, 1 Pet. 35; Townsley T. Siimrall, 3 Pet. 170; Smith v. Roach, 7 B. Moa. 17; Landrum v. Trowbridge, 2 Mete. 281. ' Id. ; Woodward v. Row, KeK E. 132 (1666) ; see also Lucas v. Ladew, 28 Mo. 343; Edwards on Bills, 387; Pilkinton v. Woods, 10 Ind. 432; Kinney v. Heald, 17 Ark. 397. Vol. I.— 24 370 PKESENTMENT FOR ACCEPTANCE. to disregard.^ So also, if the State statute seeks to make the right of recovery, in a suit brought in case of non-acceptance, dependent upon proof of subsequent presentment, protest and notice for non-payment.^ § 450. Presentment to the drawee, it has been held, is necessary, even though the drawer has requested him not to accept ; " but the holder is not bound to present again after refusal to accept and notice given, even though the drawer I'equests him to do so, and promises that the bill shall be honored.* The only cases in whicb the holder of a bill which, ac- coi'ding to its tenoi', should be presented for acceptance, can charge the drawer without presenting it for acceptance, arise when the relations between the drawer and drawee are such as to constitute the drawing of the bill a fraud upon the holder.^ When the bill is presented the acceptance must be according to its tenor to pay in money. If it be to pay by another bill, it is no acceptance, and the bill should be protested.® § 451. J^Jfect of acceptance:— Before acce-ptance the dva.v/ee is under no liability to accept, unless he has specially con- tracted to do so, and the holder cannot sue him, even though he have funds of the drawer in his hands.'' But an accept- ance operates as a full legal assignment of the amount to the holder, and the acceptor is bound to pay it. It has been much debated whether or not a bill before acceptance ope- rates as an assignment when drawn upon funds of the amount it calls for; and it seems to be settled by the au- thorities that if drawn for the whole amount it operates as ' Watson V. Tarpley, 18 How. 517. = Id. = H'H V. Heap, Dow & R. N. P. 57 ; see 1 Parsons N. & B. 338. * Hickligg V. Hardoy, 7 Taunt. 312. ' Smith's Mercantile Law (Holcombe & Gliolson's ed.) 304; Bank of Wasli- ington V. Triplett, 1 Pet. 25. " Russell V. Phillips, U Q. B. 891. ' Mimdeville V. Welch, 5 Wheat. 277; Schimmelpennich v. Bayard, 1 Pet. 264; Tiurnau v. Jackson, 5 Pet. 580. The case of Corser v. Craig, 1 Wash. C. C. R. 424, has been overruled. Luff v. Pope, 5 Hill, 413; 7 Id. 577; N. Y. and Va. S. Bank v. Gibson, 5 Duer, 574 ; Harris v. C'lark, 3 Comst. 93. NATURE OF AND NECESSITY FOR. 371 an equitable assignment, which will take precedence of any subsequent lien or charge upon them ; ^ and that after notice to the drawee it will bind him.^ And it has been so held of a draft non-negotiable.' But when the bill is for only a part of the drawer's funds, it is said that it does not operate as an assignment against the drawee, unless he accepts, for the reason that the creditor cannot be permitted without the debtor's assent to split up one cause of action into several.^ Where the draft is not negotiable, the weight of authority is to this effect.^ § 452. Effect of failure to present for acceptance.— When- ever it is incumbent on the holder to present the bill for ac- ceptance or payment, if he fails to do so at the proper time, he will lose not only his remedy on the bill, but also on the consideration or debt, in respect of which it was given or transferred.^ This doctrine is well settled, and was well ex- pressed in an Arkansas case, where Scott, J., said : " In case a plaintiff has lost by his own laches his legal recourse against the defelidant upon the bill or note, it is in vain that he brings it into court and offers to cancel it, with the expec- tation of being allowed, after cancellation, to proceed to re- cover on the original consideration. As well might he hope, by such means, to revive a cause of action that had been barred by the statute of limitations." ' ' Mandeville v. Welch, 5 Wheat. 377; Anderson v. De Soer, 6 Grat. 364;Gib- Eon V. Cooke, 20 Pick. 15. See ante^ Chap. I, Section III. 'Id. = Cuttsv. Perkins, 12 Mass. 209; Morton v. Naylor, 1 Hill, 583. * Story, J., in Mandeville v. Welch, 5 Wheat. 277; Gibson v. Cooke, gO Pick. 15. ' 1 Parsons N. & B. 334. •Adams v. Darby, 28 Mo. 182; Smith t. Miller, 43 N. Y. 171 (1870); 53 N. Y. 546 (1873); Camidge v. Allenby, 6 B. & C. 373; Danach v. Savage, 1 Show. 155 (1691). ' Gracie v. Sandford, 9 Ark. 238 (1848). 372 PKESBKTMBNT FOK ACCEPTANCE. SECTIOI^ II. FORMALITIES OP PEES ICNTMENT FOE ACCEPTANCE. § 453. In order that every step in the procedure may be properly taken, it is important to consider: (1) What bills must be presented for acceptance ; (2) By and to whom such presentment should be made ; (3) The place where such presentment should be made ; and (4) The man- ner of making presentment for acceptance. § 454. In the first place, as to what bills shovid be pre- sented for acceptance. — Bills payable on demand (which are immediately payable on presentment), or payable at a certain number of days after date, or after any other certain event, or payable on a day certain, need not be presented for ac- ceptance at all, but only for payment. And the fact that such bills are payable at a bank, or other particular place, does not alter the rule on the subject.^ But it is usual and best when the bill is payable at a future day, to present it for acceptance, in order to ascertain whether it will certainly be honored, and to procure the assurance of the acceptor's liability.^ And in such cases, if acceptance be refused, the holder must make protest, and give notice in the same man- ner as if the bill were payable at so many days after sight.^ ' Bank of Washington v. Triplett, 1 Pet. 25 ; Townsley v. Sumrall, 3 Pet, 170; Allen v. Suydam, 30 Wend. 321; Batchellor v. Priest, 12 Pick. 399; Bank of Bennington v. Raymond, 13 Vt. 401; Smith v. Roach, 7 B. Mon, J 7; Car- niicbael v. Bank of Penn. 4 How, (Mis3.) 537; Glasgow v. Copeland, 8 Mo. 208; On- V. Maginuis, 7 East, 363; Dnnn v. O'Keefe, 5 M. «& S. 2S3; Walker v. Stet- son, 19 Ohio St. 400; Story on Bills, § 228, It not being necessary to present a bill payable on a day certain for accept- ance, an agreement not to present it for acceptance will not discharge an in- dorser, although tbe drawee says it will not be accepted or paid. Fall River Bank v. Willard, 5 Mete, 210, = U, S, T. Barker, 4 Wash. C. C. R, 464; Story on Bills, § 228. => Glasgow V. Copeland, 8 Mo. 208; Allen v. Suydam, 20 Wend, 831; U, S, v. Barker, 4 Wash. 0. C. R, 464; Landrum v. Trowbridge, 2 Mete. 281. Philpott V. Bryant, 8 Car. & P, 244, in which case Park J., said : " I should destroy half the trade of the city of London, if I were to hold that bills made payable so many days after date must be presented for acceptance," FOEMALITIES OP. 373 Bills payable at sight, or at so many days after sight, or after demand, or after any other event not absolutely fixed, must be presented to the drawee for acceptance and pay- ment, or for acceptance only, without unreasonable delay, or the drawer and indorsers will be discharged, for they have an interest in having the bills accepted immediately io order to shorten the time of payment, and thus put a limit to the period of their liability ; and also enable them to protect themselves by other means before it is too late, if the bill is not accepted and paid within the time originally contem- plated by them.^ When the words " acceptance waived," are embodied in a bill, the ordinary proceedings in acceptance are dispensed with, and merged into those of payment or non-payment.* § 455. In the second place, as to the person hy and to 'mhom presentment for acceptance should he made. — -The bill must be presented by the holder or his authorized agent, and to the drawee, or his authorized agent. The party in possession of the bill is presumed to be the holder, and to have the right to make presentment for acceptance or pay- ment.^ The drawee may accept without risk, and if he re- fuse the protest will inure to the benefit of the rightful holder.* If the drawee cannot be found, and any person has been indicated to be resorted to in case of need (au iesoin), the bill should be presented to that person.* ' Allen V. Snydam, 30 Wend. 321; Aymar v. Beers, 7 Cow. 705; Robinson v. Ames, 30 Johns. 146 ; Wallace v. Agry, 4 Mason, 336; 5 Mason, IIS; Mitchell v. Degrand, 1 Mason, 176; Story on Bills, § 328. V/hether or not bills payable at sight are entitled to grace, is a question about which authorities diflfer, though preponderating in favor of the allowance of grace. See, on this subject, Chapter XX, on Presentment for Payment, Section IV. - Webb V. Mears, 9 Wright, 233 ; Deneyre v. Milno, 10 La. Ann. 334 ; English V. Wall, 13 Rob. (La.) 133; Liggett v. Weed, 7 Kan. 376; Carson v. Russell, 36 Tex. 473. ' Bank of Utica v. Smith, 18 Johns. 330 ; Freeman v. Boynton, 7 Mass. 483; Agnew V. Bank of Gettysburg, 3 Har. & Gill, 478. See Chapter XX, on Present- ment for Payment, Section I. * Chitty on Bills (lyth Am. ed.) 311. ' Story on Bills, § 339 ; Edwards, 403. 374 PKESENTMBNT JFOK ACCEPTANCE. If the bill be drawn upon two persons not partners, it seems that it must be presented to both, if not paid by the first ; ^ but this has been doubted, for the reason that the holder would not be bound to take the single acceptance of the other — and if he did, it would be at his oAvn risk, if the bill were not protested.* But if the bill be di'awn upon a firm, presentment to any partner is sufiicient,* and the fact that the firm has been dissolv^ed by bankruptcy does not ren- der it necessary to present the bill to both.* § 456. The holder must be careful, when he does not find the drawee in person, to assure himself that the party to whom he presents the bill for acceptance is his authorized agent. And though in the case of a presentment for pay- ment it may sufiSce to demand payment at the residence of the acceptor, yet in case of a presentment for acceptance, the holder must endeavor to see the drawee or his authorized agent, personally. And therefore, where in an action against the drawee on a refusal to accept, it appeared that the wit- ness had carried the bill to a place which was described to him as the drawee's house, and that he offered it to a person in a tan yard, who refused to accept it ; and the witness did not know the drawee's person, nor could he swear that the person to whom he offered the bill was he, or represented himself to be so, it was held that the evidence of presentment to the drawee for acceptance, was insufficient.'' § 457. There is no doubt that a clerk found at the drawee's counting-room is a competent party for the bill to be presented to, and to refuse acceptance of it ; and it seems that it is not necessary to show that such clerk was the clerk of the drawee authorized to accept or refuse acceptance of ■ Willis V. Green, 5 Hill, 333; Story on Bills, § 339. See Union Bank t. Wil- lis, 8 Mete. 504 ; Arnold v. Dresser, 8 Allen, 433 ; Gates v. Beeoher, 60 N. Y. 533; American Law Kegister, July, 1875, p. 440. ' Story on Bills, § 339, note 9. See on this subject, Harris v. Clark, 10 Ohio, 6 ; and Greenough v. Smead, 3 Ohio St. 415. ' Greatlake v. Brown, 2 Cranch C. C. 541 ; Story on Notes, § 339; 1 Parsons N. & B. 135; Holtz v. Boppe, 37 N. Y. 634. * Gates V. Beecher, 60 N. Y. 533. ' Cheek v. Boper, 5 Esp. 175. FORMALITIES OF. 375 bills ; but parol evidence is admissible to prove that the clerk was authorized to refuse acceptance.^ § 458. Cljitty says, and Byles quotes his words with ap- proval, that " if on presentment it appear that the drawee is dead, the holder should inquire after his personal representa- tive, and, if he live within a reasonable distance, should pre- sent the bill to him." ^ Story states that the drawee's death will be " no excuse for the omission of presentment of the bill for acceptance," ' and Roscoe considers that " the cases with regard to presentment of bills where the party is dead, &c., apply also to presentment for acceptance." * But it has been well observed on this subject by Edwards that " upon principle, it is not easy to see upon' what ground the holder is bound to present a bill drawn upon the deceased to hia executor or administrator for acceptance. An acceptance by the representative, binding himself personally, is not accord- ing to the tenor of the bill ; neither is an acceptance qualified so as to render him responsible to pay out of the assets that may come into his hands." ^ The holder could not be bound to take the representative's acceptance in either form, and it would be reasonable to hold that where the drawee was dead the bill might be protested, and recourse had against the other parties. § 459. In the third place, as to the place where present- ment for acceptance may he made. — It was at one time a ' Nelson v. Fotterall, 7 Leigh, 180; Stainback v. Bank of Virginia, 11 Grat. 260. "■ Chitty on Bills (13 Am. ed.) [*280] 318, citing Molloy, ch. 2, c. 10, s. 34; PothierPl. 146; Bylea (Sharswood's ed.), [*177] 303; Story on Bills, § 286. = Story on Bills, §§ 330, 236. * Roscoe on Bills, 146, 147. ' Edwards on Bills, 401 ; see also Id. 454, note 2. In Thomson on Bills, 282. it is said: '• It has been said that if the drawee is dead the holder should pre- sent it to his nearest heirs, and protest it on their refusal to accept, though they have not yet taken up his succession. This should certainly be done where the drawee's heirs have taken up his succession. But otherwise, there is no person representing him, as to the bill, and the presentment of it then appears as futile as if made to a stranger. In such a case, it seems necessary that a holder should, within a reasonable time, notify to the other parties the drawee's death, by which presentment has become impossible." 376 PEESENTMENT 3?0E ACCEPTANCE. question much litigated in England, whether, if a bill paya- ble generally — that is, without specification of a place of payment— was accepted payable at a particular place, such an acceptance was a qualified one. It was decided in the House of Lords (contrary, however, to the opinion of eight of the twelve judges to whom the question was referred), that such an acceptance was a qualified one, and that a de- mand at the particular place named was a condition preced- ent to a recovery against the acceptor, as well as against the drawer and indorser.^ This decision led to the passage of the statute of 1 & 2 Geo. IV, c 78 (called Sergeant Onslow's act), in which it was recited that the practice and understand- in" of merchants had been diiferent; and enacted that an acceptance payable at a particular place without further ex- pression, should not be deemed a conditional acceptance; but if it were payable at a specified place " only, and not other, wise, or elsewhere," it should be deemed conditional. § 460. In many of the States of the United States the English statute has been substantially enacted ; and the courts, with few exceptions, have, independently of statute followed the judgment of the eight judges against the House of Lords. Therefore, by the American law, it is settled that demand of payroent at the place specified need not be averred by the plaintiff; but if the acceptor was at the place at the time specified, and ready to pay the money, it was a matter of defense to be pleaded on his part; which, defense, how- ever, is no bar to the action, but goes only in reduction of damages, and in prevention of costs.^ This subject will be more fully discussed when we come to consider presentment for payment. But at any rate, the presentment of the bill or note for acceptance should be at the place of the domicile of the ' Rowe T. YouDcT, 2 Brod. & B, 165 ; 3 Bligli, 391. ' See 1 Parsons N. & E. 305-311 ; Story on Bills, ?§ 355-357; Byks on Bills (Sharswood's eel.), 318, 319, and .341-340; Edvrards on Bills, 426,428; Bayley, 115. In Indiana, the House of Lords has been followed : see Presentment for Payment, Chapter XX, Section V. FORMALITIES OF. 377 drawee, whether it be payaV)le generally, or at a particular place — the place of payment being immaterial until after ac- ceptance.^ If the drawee has removed his residence from the place to which it is addressed — or really resided at a differ- ent place — the bill should be presented at his new or real place of domicile, if the holder can ascertain it by diligent in- quiries.^ If by such inquiries the drawee's place of domicile cannot be ascertained, or if he has absconded, the bill may be treated as dishonored.® § 461. Presentment for acceptance may he either at the dwelling or the place of business of the drawee. — If the drawee has his dwelling-house in one part of the town or city, and his place of business at another, it may be made at either place; and if the drawee resides in one town, and has his place of business at another, the holder may present the bill at either.* § 462. How presentment for acceptance should he made. — The holder of the bill should have it in his possession, make an actual exhibit of it to the drawee, and request its acceptance.® '' The term presentment imports not a mere, notice of the existence of a draft which the party has in his possession, but the exhibiting of it to the person on whom it is drawn, that he may see the same, and examine his accounts or correspondence, and judge what he shall do; whether he shall accept the draft or not." ^ But while it is better in all cases to avoid all question by observance of the formality in- dicated, the drawer and indorsers may be charged by due protest and notice Avhere the bill is not thus actually exhib- ited to the drawee, but he is enabled by seeing it or other- wise to give, and does give, an intelligent response to the request to accept it.'' ' Chitty on Bills (18tli Am. ed.), 316. '^ Anderson v. Drake, 14 Johns. 114 ; Freeman v. Boyton, 7 Mass. 483; Bate- man V. Joseph, 13 East, 433. ' Id. ; Chitty, 310. * Story on Bills, § 386. ' 1 Parsons N. & B. 348. " Fall River Union Bank v. Willard, .T Mete. 216; Edwards on Bills, 505. ■" Fisher v. Beckwith, 19 Vt. 31; Carmichael v. Bank of Penn. 4 How. (Miss.) 667. 378 PEBSENTMENT FOR AOCEPTANCE. § 463. If the holder does not produce the bill, the drawee may require him to do so, and decline accepting, save iu the proper form by vvi'iting his name oh its face ; and then unless tlie holder produces it the drawer cannot be charged with the penalties of non-acceptance, but if the drawee makes no such requirement and does what is equivalent to acceptance he cannot afterward refuse to be held on the ground that he did not see the bill.-' • If the holder leave the bill witli the acceptor, and by his negligence enable a thiixl party to get possession of it, he cannot hold the acceptor liable in an action of trover.^ Either one of a set of bills may be presented and ac- cepted ; and the indorsement of one of a set carries all, and indorsee may maintain trover for the rest.^ SECTIOlSr III. f TIME OF PEESENTMENT FOE ACCEPTANCE. § 464. In connection witt the time of presentment for acceptance, we shall consider (1) the time of day for such presentment, and (2) the period of time vs^ithin which such payment must be made. And in the first place : presentment for acceptance should in all cases be made during the usual hours of business, and Buch hours, except where presentment must be at a bank, generally range through the whole day to hours of rest in the evening.* Eight o'clock in the evening would not be too late to present a bill for acceptance to a tradesman.^ And it matters not at what hour it is made, provided an answer be given by an authorized peison." But it is a mere nullity if ' Fall River Union Bank v. Willard, 5 Meto. 21G. ' Morrison v. Buchanan, 6 Car. & P. 18. = Dowr.es & Co. v. Church, 13 Pet. 305; Walsh v. Blatchley, 6 Wis. 422; Porreira v. Jepp, 11 B. & C. 449; Edwards on Bills, 304 and 16o. 'Ellbrd V. Teed, 1 M. & S. 28; G Id. 44; Parker v. Gordon, 7 East, 385; Cayuga County Bank v. Hunt, 2 Hill, 633; see Chapter XX, on Presentment for Payment, Section III; Edwards on Bills, 399. ' Chitty on Bills [*313]. » Chitty on Bills [*3161. TIME OF. 379 made at an unreasonable hour — after "bed-time or business hours — if no such answer be given.^ If thei-e is a known custom or usage in a town or city, which regulates business hours, that should govern in determining the proper hour for presentment at the drawee's place of business.^ § 465. Within what period of time presentment for ac- ceptance must he made. — It seems to be the general commercial law of the civilized world that, when a bill is payable at a day certain — as, for instance, on a day named, or a fixed day after date — it need not be presented until the day of pay- ment, in order to charge the drawer or an indorser.^ The reason of this is that the drawer, by fixing a day certain for payment, assumes the responsibility of providing funds at that time, whatever may have been' his previous credit with the drawee. And as to the indorser, by the veiy act of in- dorsement he draws a new bill on the same terms; and, be- sides, he waives his right of immediate acceptance by not enforcing it himself, but putting his bill into circulation with- out acceptance.* There are, however, two exceptions to this general i-ule that it is not necessary to present a bill payable at a fixed time for acceptance, but only at maturity for pay- ment : First, when there is an express direction to the payee or holder of a bill; and, second, when it is put into the hands of an agent for negotiation. If payable at sight, or at a cer- tain time after sight, or on demand, the only rule which can be laid down is that it must be presented within a reason- able time,'' unless there be some well established usage of trade which fixes a' definite time for such presentment, in which case such usage would control." If the bill be not presented within a reasonable time, the drawee is discharged, ' story on Bills, § 337. = Story on Bills, §§ 336, 340; Story on Notes, § 135. ' Towusley v. Sumrall, 3 Pet. 178; Goupy v. Harden, 7 Taunt. 159 ; Bachellor V. Priest, 13 Pick. 399. ' Vcrplanck, Senator, in Allen v. Suydam, 17 Wend. 368; 30 Wend. 321. ' Wallace v. Agry, 4 Mason, 836; Mullick v. Radakissen, 9 Moore, P. C. 66; Bridgeport Bank y. Dyer, 19 Conn. 136. ° Mellish V. Rawdon, 9 Ring. R. 416. 380 PKBSBNTMBNT FOR ACCEPTANCE. although all the parties continue solvent, and there is no damage caused by the delay .^ § 466. General nde as to reasonable time — when question of law and when question of fact. — "What reasonable time is " said Story, J., in a case before the U. S. Circuit Court,^ depends upon the circumstances of each particular case, and no definite rule has been as yet laid down, or indeed can be laid down to govern all cases. The question is a question of fact for the jury, and not of law for the abstract decision of the court. Such, I take it, is the doctrine of the authorities." ^ A more accurate statement of the rule, as we conceive, is that of Bigelow, J., in a Massachusetts case;* "Ordinarily," says he, " the question whether a presentment was within a reasonable time, is a mixed question of law and fact, to be decided by the jury, under proper instructions from the court. And it may vary very much, according to the partic- ular circumstances of each case. If the facts are doubtful or in dispute, it is the clear duty of the court to submit them to the jury. But when they are clear and uncontra- dicted, then it is competent for the court to deteimine whether the time required by law for the presentment has been exceeded or not." ^ " In this State " (New York), says Edwards on Bills, 391, " the question is considered one of law to be decided by the court," quoting Aymar v. Beers, 7 Cow. 705. The cases ' MuUick Y. Radakis3en, 9 Moore P. C. 66 ; 38 B. h. & Eq. 80 ; Carter v. Flowei', 16 M. & W. 743. " Wallace V. Agry, 4 Mason, 336. "Fry V. Hill, 7 Taunt. 397; Goupy v. Harden, 7 Taunt. 159; Muilman v. D'Eguino, 3 H. Bl. 565; Fernandez v. Lewis, 1 McCord, 323; Nichols v. Black- more, 37 Tex. 586. ' Presoott Bank v. Caverly, 7 Gray, 217. ■■ The rule as stated by Professor Parsons, Vol. 1 N. & B. 340, is substantially this: He says, "Where the facts are lew and simple and the acts or admissions of parties clear and unequivocal, the question is one of law for the court. But where the rights and liabilities of parties depend on contracts, and a variety of transactions and dealings arising therefrom, or v/here the facts are contradictory and complicated, it is a question for the jury to determine." See also Shute v. Robins, 3 Car. & P. 80 (E. C. L. R.) ; Straker v. Graham, 4 M. & W. 721 ; Mul- lick V. Radakissen, 28 E. L. & Eq. 86 ; Chambers v. Hill, 26 Tex. 473. TIME OF. 381 cited in Aymar v. Beers in support of this doctrine related to notice. The principle of the text seems to us far more reasonable. § 467. Due diligence must he exercised. — It is not neces- sary for the holder to take the first opportunity to present for acceptance/ though to avoid question in case of loss it is advisable to do so — due diligence — that is, presentment within a reasonable time, is all that is necessary. " The dis- tinction is," as was said by Gibbs, C. J., " between bills pay- able at a certain number of days after date, and bills payable at a certain number of days after sight. In the former, the holder is bound to use all due diligence, and present the bill at maturity; but in the latter case, he has a right to put the bill into circulation before he presents it, and then, of course, it is uncertain when it will be presented to the drawee. It is to the prejudice of the holder if he delays to do it, and he loses his money and interest." ^ § 468. There are certain circumstances which may affect the question of reasonable time, such, for instance, as : (1) The passing of the bill into circulation ; (2) The fluctuations of the rate of exchange ; and (3) The facilities of communi- cation between the parties. § 469. And, in the first place^ a larger latitude is allowed for presentment for acceptance when the holder transfers the bill and it passes into circulation. In such cases a long de- lay, say of a year or more, would not be negligence ; but if the transferrer came again in possession of the bill, a more stringent rule would be applied to him than to transferees.^ But if the holder retains possession of the bill for an un- reasonable time, and thus locks it up from circulation, he makes it his own, and will have no remedy against anteced- ent parties from or through whom he derived title.* ' Muilman v. D'Eguino, 2 H. Bl. 565; Prescott Bank v. Caverly, 7 Gray, 217. " Goupy T. Harden, 7 Taunt. 159. ' Muilman v. D'Eguino, 2 H. Bl. 565. ' Bylcs (Sharswood's ed.) [*176], 303. Bajley on Bilia, p. 227 ; Chitty [*375-6], 312; Story on Bills, § 331 ; Robinson v. Ames, 30 Johns. 146; Gowan v. Jackson, Id. 176; Fry v. Hill, 7 Taunt. 397. 382 PRESENTMENT FUR ACCEPTANCE. § 470. As illustrations : where A, of Calcutta, drew a bill, payable sixty days after sight, on B, of Hong Kong, and indorsed it to C, of Calcutta, and the latter, finding bills on China unsalable, without the prospect of improvement, kept the bill five months, and then indorsed it to C, who for- warded it for acceptance, which was refused, it was held that the drawer was discharged by the unreasonable delay, al- though the parties were solvent, and he had suffered no damage.^ In Houth Carolina,'^ it appeared that a bill drawn in Charleston, South Carolina, on New York, at three days was not presented for two and a half months. The holder lived several days in the same house with the drawee ; and it was held that the drawer was discharged by the delay. In another case, one month's delay was held too much, the distance between the residence of the drawer, and the drawee being only eighteen miles, with communication three times a week between them.' In Louisiana,* it appeared that a bill drawn in New Or- leans on Liverpool, at thirty days, was sent by way of New- York, and a delay of two and a half months in presentment was held no laches ; and it has been frequently held that, while a holder would hardly be warranted in sending the bill to a remote place wholly out of the course of trade, yet he may put it in circulation, or send it to any other place within reasonable mercantile regulations for remittance or sale. A bill drawn in Havana on London may be forwarded by way of the United States — one drawn in London by way of Paris and Genoa; and one drawn in New Orleans on Liverpool, by way of New York.^ ' Miilliok V. Riidakissen, 23 Bug. L. & Eq. R. 86; 9 Moore P. C. 66. ' Fernaadez v. Lewis, 1 MoCord, 333. = Dumont v. Pope, 7 Blackf. 367. * Bolton V. Harrod, 'J Mart. (La.) 336. ■■ In Wallace t. Agry, 4 Mason, 333, Story, J., said : '' It has been said that tlie plaintiff was bound to send it (the bill) directly from Havana to England by some regular conveyance, and had no right to remit it to Boston for sale. I am of a different opinion. The party -who receives a negotiable bill payable after eight has a right to sell it in the market where he resides, or to send it to any other place for sale. He is not bound personally to make a remittance of it, or to send it directly to the country on which it is drawn. He is at full liberty to TIME OP. 383 § 471. Bills drawn in London on Calcutta at ninety days, were circulated seventy-eight days in England, and the delay was held no laches ; ^ and like decisions were rendered where a bill was drawn in London on Lisbon at thirty days, circu- lated through Paris and Genoa, and presented after a delay of three months and ten days ; ^ where a bill was drawn in Plymouth on London at twenty days' sight, and was not pre- sented for nine days;^ where one was drawn in Windsor on Loudon, and was not presented for four days (Sunday inter- vening) ; * where a bill was drawn at sixty days at Augusta, Georgia, on New York, and was put in circulation and not presented for two mouths and a half;® and wtere a bill drawn in Antigua on London at ninety days, was circulated for six months — a packet leaving Antigua for London once a month." § 472. Where a sight draft on New York was indorsed to the plaintiff in Wisconsin, and was not mailed to New York for presentment for fourteen days, it was held prima facie evidence of laches, but might be rebutted.'' But pre- sentment in Boston on Wednesday, during banking hours, of a bill at sight, indorsed to the holder in Lowell after bank- ing hours the previous Saturday, and forwarded by the put it in circulation, or to send it to any other place for sale or remittance; and tiie only limitation upon this right is, that he shall have it presented within a reasonable time, be the conveyance direct or indirect. To be sure, the usage of trade is to be consulted on this, as on other occasions. The holder of such u bill is not at liberty to send it to very remote places, wholly out of the course of trade, if there be unreasonable delaj' thereby, in the presentment for acceptance; and thus to fix the drawer with an indefinite responsibility. But, on the other hand, the transmission in a direct trade is not necessary. No one can doubt that, by the course of trade, many bills of exchange drawn in Havana on England are sent to the United States for remittance or sale. The very testimony in this case establishes this fact. It would be a most inconvenient rule to hold that such a negotiation of bills was at the sole peril of the holder. I know of no rule of law reaching to such extent. In my judgment, the remittance of the bill to Bos- ton for sale was not a disiharge of the defendants." ' Muilman v. D'Eguino, 2 H. Bl. 565. = Goupy v. Harden, 7 Taunt. 397. " Shute T. Robins, Moody &M. 133; 3 Car. & P. 80. * Fry V. Hill, 7 Taunt. 397. ' Robinson v. Ames, 20 Johns. 146; Edwards on Bills, 389. * Gowan v. Jackson, 20 Johns. 176. ' Walsh v. Dart, 23 Wis. 334. 384 PEBSBNTMENT FOE ACCBPTA.KCB. holder to Boston on Tuesday, was held sufficient to charge an indorser.^ Delay of twenty-one days to forward sight drafts received at Detroit, Michigan, on Chicago, Illinois, was held too long.^ Where a draft was drawn on New York by a bank in Erie, Pennsylvania, in favor of a traveling agent, who, in pursuance of his business, did not return to his home in New Jersr-j^, where he had the first opportunity to negotiate it, until ten days after its date, it was held that the delay was not unreasonable under the circumstances.^ In an Illinois case where an inland bill drawn at sight on a Chicago bank, was mailed on the day of its date to the payee's address in Dakota Territory, and was received by him after some delay in the mail, and by him at the first opportunity put in circu- lation, and no delay was suffered other than that incident to the transaction of business in a sparsely populated territoi'y ; and the bill was presented for payment thirty-five days after date, and protested for non-payment — it was held that the drawei', who was duly notified was bound, the bank having failed in the meantime.* § 473. Ill the second place: The falling or rising of the rate of exchange in the place of residence of the di-awee, should be taken into consideration in determining whether or not there was unreasonable delay ; and if exchange were ■ Presoott Bank v. Caverly, 7 Gray, 317. ' Phoenix Ins. Co. v. Allen, II Mich. 30; Phoenix Ins. Co. v. Gray, 13 Mich. 191 ; see Chambers v. Hill, 26 Tex. 586, where two and a half years was held a fatal delay. = National Newark Banking Co. v. Second National Bank, 63 Penn. St, 404. ' Montelius v. Charles, 76 111. 305. Scott, J., saying : " Bills both inland and foreign, having the quality of negotiability, are intended, in some degree, to be used as a part of the circulation of the country, and are indispenjable in the con- duct of extended commercial transactions. They afford a safe and convenient mode of making payments of indebtedness between distant points. Banking houses that for a considei'ation issue such bills, must be understood to do so in accordance with the known custom of the country — that they will be put in cir- culation for a limited period. If this were not so, their value would be greatly depreciated, and their utility in commercial transactions would be destroyed." See also Shute v. Robins. 8 C. & P. 80 ; Jordan v. Wheeler, 20 Tex. 698 ; Nichols V. Blackmore, 27 Tex. 586. TIME OP. 385 steady, without prospect of change, or were rising, a shorter and less extended period of time would be thought reason- able, while if the exchange fell immediately after the sale of the bill, the jury might then think a more extended period might fairly and reasonably be allowed the holder, in order to enable him bona fide to endeavor to make a fair profit, or at all events to endeavor to secure him from, loss.^ In an English case the bill was drawn in Calcutta on Hong Kong, at sixty days, and the indorsee kept the bill five mouths. Held, no laches. Pai^ke, B., saying : The court " thought that the evidence proved that, for the whole of the time, a period of more than five months, bills on China were altogether un- salable in Calcutta ; that such was the permanent and regular state of the market ; and that although, if there was a reason- able prospect of the state of things being better in a short time, the holder would have had a right, with a view to his own interests, to keep the bill for some time, he had no such right when there was no hope of the amendment of that state of things; and we are of opinion that the evidence fully justified this conclusion from it, and that the court, deciding on facts as a jury, were perfectly right."" § 474. In the third plciGe : The faoility of communication betiveen the places should be considered, in determining the question of laches, when the party who presents the bill has had it in his possession for some length of time;® as also the distance between the places.* In an English case,^ the bill was drawn in Carbonear,. Newfoundland, on Poole, England, at ninety days, and was not presented until three months after date. Carbonear is twenty miles from, and was in daily communication with St. Johns, from which the mails were sent to England three times a week. The average length of the ' Mellish V. Rawdon, 9 Bing. 416; 3 Moore & S. 500; Wallace t. Agry, 4 Ma- son, 336 ; Mullick v. RadaWssen, 38 Eng. L. & Eq. 8. ' Mullick V. Radakissen, 38 E. L. & Bq. 86. ' Shute T. Robins, Moody & M. 133 ; 3 Car. & P. 80 ; Straker t. Graham, 4 M. & W. 721; Mullick v. Radakissen, 9 Moore P. C. 66; 28 B. L. & Eq. 86; Dumont v. Pope, 7 Blackf. 307. * Nichols V. Blackmore, 37 Tex. 586. ' Straker v. Graham, 5 M doubt; and we agree with the court below, that the con- tinued solvency of the drawers does not prevent the applica- tion of the rule that the bill must be presented in a reasona- ble time, with reference to the interest of the drawer to put the bill into circulation, or the interest of the drawee to have the bill speedily ^^resented." § 476. Agents duty ioi presenting for acceptance. — It has been already seen that there are two exceptions to the gen- eral rule that it is not necessary to present a bill payable at a time certain for acceptance before it becomes due — the first arising when there is an expre,ss direction to the payee or holder of the bill, and the second, Avhen the bill is put in the hands of an agent for negotiation. In Allen v. Suydam (17 Wend. 368, confirmed in 20 Wend. 321), it was 'held that an ' Mullick r. Radakissen, 9 Moore P. C. 46 ; 28 E. L. & Eq. 86. TIME OE. 387 agent who received a "bill, payable after date, for collection, and wliich had not been accepted, was bound to present it without unreasonable delay ; and having delayed for seven- teen days to do so, he was liable to his principal for all dam- ages he might have sustained by his delay. This is a leading case, and was decided upon thorough argument and consid- eration. It is, however, criticised, and dissented from by Professor Parsons,' on the ground that as it would not be negligence in the principal to delay, it would be unjust to consider it such in the agent, and the latter should not be held responsible without some express or implied instruction to present immediately. But we are inclined to coincide with the case cited,* which is supported by the analogy of the Scotch law,^ and by English authority.* § 477. A case remarkable for its similarity to the New York case above quoted was decided by the Scotch Court of Session in like manner. A bill, payable at Glasgow three days after date, was sent to agents at that city for collec- tion. Before the day of payment the drawer failed, and the Glasgow bank refused to accept. It was not clear whether the bank would have accepted the draft if it had been imme- diately presented, for the bank had no funds of the drawer, and the practice had been to make provision for such drafts at the day of payment. In an action against the agents, the court held "that, as agents, they were bound immediately to present the bill for acceptance." * § 478. Effect of war, sickness, inevitable accident, and other reasonable causes of delay. — Any reasonable cause, such as sickness,^ inevitable accident, or intervention of war, or ' 1 Parsons N. & B. 346-7. ' See Redfleld & Bigelow's Leading Cases, pp. 34, 35 ; and ante, % 330. ' Thomson on Bills (Wilson's ed.) 277. < Vanwart v. Wooley, 3 B. & 0. 439; 5 Dow. & R. 374; Chitty on Bills (13 Am. ed.) 311: Byles (Sharswood's ed.) 399; Roscoe on Bills, 141, note 36. ' Bank of Scotland v. Hamilton, 1 Bell's Commentaries, 409. ° In Aymar y. Beers, 7 Cow. 705, the defendant sought to excuse delay in pre- senting for acceptance on account of the payee's sickness. The court below re- jected the evidence; but the court above held that sickness was an excuse, and ordered a new trial. See Byles on Bills (Sharswood's ed.) [*176], 302. 388 PEESENTMEifT FOB ACCEPTANCE. otlaer circumstances beyond the holder's control, will excuse delay in presentment for acceptance.* But these and other circumstances, excusing delay or failure to make due present- ment for acceptance, will be hereafter considered in connec- tion with the consideration of the excuses which may be made for like delay or failure in respect to presentment for payment, and giving notice of dishonor. ' TJ. S. T. Barker, 1 Paine, C. C. 156. In this case, a bill drawn in the United States on Liverpool was presented three months from date. War existing between the two countries, it was held no laches. The decision in this case as to the validity of the bill cannot be sustained. See ante, Chapter VIII, Section II. CHAPTER XVIII. ACCEPTANCE OP BILLS OF EXCHAKGE. SECTION I. THE NATUEi: OF ACCEPTANCE. § 479. The drawer of a bill undertakes that when it is presented to the drawee he will accept it ; and by acceptance is meant an undertaking on his part to pay it according to its tenor.^ The acceptor, by his act, engages to pay the holder, whether payee or indorsee, the full amount of the bill at maturity ; and if he does not, the holder may sue him.^ If the drawee have funds in his hands belonging to the drawer, it is his duty, according to mercantile usage, to honor the bill by accepting it ; but he is not legally bound to do so by the mere fact that he holds such funds, any more than a debtor is legally bound to execute a promissory note to bis creditor for the amount due upon his request to do so.° But there may be relations between the drawer and drawee which make it incumbent on the latter to honor the bill. Thus if the drawee has been supplied with funds for the express purpose of meeting the bill ; or if he have money on deposit under such circumstances as imply a contract on his part to accept the bill, as. for instance, if he be a banker, and the bill (or check) be drawn on a cash account, he will be ' Russell V. Phillips, 14 Q. B. 891 (68 E. C. L. B.) ; Byles (Sharswood's ed.) [*178], 304: Bayley (3 Am. ed.), 154; Story on Bills, § 272. ^ Hoffman & Co. v. Milwaukee Bank, 12 Wall. 181 ; Bayley on Bills, 96. ' Story on Bills, 113, 117, 238; Edwards on Bills, 405; Chitty (13 Am. ed.) [*281], 818, 319. See Chapter XLIX, on Checks, Sections X and XI, vol. 11. 390 ACOEPTAKOE OF BILLS OE EXCHANGE. answerable in an action of tort for not honoring the draft. But until he has acce])ted the bill he is not liable as a party to it.i § 480. Until he has accepted the bill, so entirely is the drawee a stranger to it, that he may himself discount it. And he may then transfer it as the bona fide holder to another, who may sue and charge the drawer.^ He may dis- count it either for the drawei', the payee, or an indorsee. " If the acceptor discounts the bill for the drawer, and then indorses it away, the drawer will be liable upon it to the holder, and the transfer by the drawer to the acceptor will operate as an indorsement, although, at the time, the drawer does not intend to transfer by way of indorsement, being under the impression that the bill is discharged by coming into the hands of the acceptor. Nor will the payment of the amount, less the discount, be deemed a payment of the bill by the acceptor." ^ If the drawee comes into possession of the bill before its dishonor, there is no presumption that he takes it with the obligation to accept.* § 481. Sometimes, though infrequently, the Ijill directs the drawee to pay the amount specified, at a certain time, " without acceptance," or contains upon its face the expression " acceptance waived." In such cases the bill is not impaired in its negotiability, but the effect is to merge the ordinary proceedings on acceptance, or non-acceptance, into those of payment or non-payment, and the drawer is bound just as upon an accepted bill.^ ' Marzetti v. Williams, 1 Barn. & Ad. 415 (20 E. 0. L. R.) ^ Attenborough v. McKenzie, 36 Eng L. & Eq. 563; Desha v. Stewart, 6 Ala. 853; Swope v. Ross, 40 Penn. St. 186; Story on Bills (Bennett's ed.), § 233. = Swope V. Ross, 40 Penn. St. 186, Strong, J. In Attenborough v. McKenzie, mpra, the holder of the bill took it by indorsement after it was due from the transferree of the acceptor. The ruling goes to the length that even the accept- ing drawee of a bill may take it as an indorsee, and as such may issue it. ^ Desha v. Stewart, 6 Ala. 853. " Deuegre v. Milne, 10 La. Ann. 324; English v. Wall, 12 Rob. (La.) 133; Webb V. Hears, 9 Wright, 332; Carson v. Russell, 26 Tex. 453 ; Miller v. Thom- son, 3 Man. & G. 576 (43 E 0. L. R.) ; Rey v. Kinnear, 2 M. & Rob. 117. •WHAT BILLS EEQCriRB ACCEPTANCE. 391 SECTIOi^ II. WHAT BILLS EEQUIEE ACCEPTANCE, AND BY WHOM AND WHEN THET SHO0LD BE ACCEPTED. § 482. We come now to consider the former procedure in procuring acceptance. And in the Jlrst place : There are some bills, such as are drawn payable immediately on demand, which are not pre- sented for acceptance, but only for payment. They are con- sidered in the preceding chapter on " Presentment for Accept- ance." And there are some bills which do not need acceptance, in order to bind the drawee, or rather in which the act of drawing itself constitutes acceptance. Thus, a bill drawn without being addressed to any drawee,^ or drawn by a party upon himself,^ or by a partner upon the firm of which he is a member, for partnership purposes.^ A bill drawn by the president of a corporation in its behalf, on the treasurer thereof, would be a bill drawn by the corporation on itself, and hence, not need acceptance ; ^ but if not drawn on the treasurer in his official character, it would be otherwise.* § 483. Either of a set of bills may he presented for ac- ceptance^ and if not accepted, a right of action accrues imme- diately upon due notice against all the antecedent parties to the bill, without any others of the set being presented.* But the drawee should accept but one of the set, for if two or more of the set should be accepted, and should come into the hands of different holders, and the acceptor should pay one, he might also be obliged to pay the others also.' ' Marion, &c. R. Co. v. Hodge, 9 Ind. 163 ; Dougal v. Cowles, 5 Day, 511. " Hasey v. White Pigeon Company, 1 Doug. (Mich.) 193; Cunningham v. Ward well, 3 Fairf. 466; Roach v. Ostler, 1 Man. & R. 130; cited, 1 Pars. N. & B. 288. See ante, § 138. ' Dougal V. Cowles, 5 Day, 511 ; Miller v. Thompson, 3 Man. & Q-. 576. * Hasey v. White Pigeon Company, 1 Doug. (Mich.) 193. See ante, § 139. " Halsted v. The Mayor, 5 Barb. 318. ' Downes v. Church, 13 Pet. 307 ; Bank of Pittsburg v. Neal, 23 How. 108. ' Bank of Pittsburg v. Neal, 23 How. 109. 392 ACCEPTANCE OF BILLS OE EXCHANGE, Where one of a set which was made and accepted in bL^nk is filled up, varying from the others, not only in date and amount, but also as to time and place of payment, and is negotiated by the correspondent of the acceptor to a bona -fide party, without notice that such act was done without au- thority, the acce2:)tor is liable to such bona fide holder.'^ It seems that if the dr*awee accept two or more parts of a set of bills, and the several parts come into the hands of dif- ferent bona fide holders without notice, he will be liable to pay on each part.^ § 484. In the second place ^ as to the person who may ac- cept a bill. — The drawing of a bill imports a contract on the part of the drawer that the drawee is a person competent to accept; and therefore, if the holder upon presentment of the bill ascertains that the drawee is incapable of contracting — for instance, is a minor, an idiot, or a married woman — he may cause it to be protested, and j^roceed against antecedent parties as usual in cases of dishonor. § 485. Except in cases of acceptance for honor, no one can accept a bill except the party on whom it is drawn, or his authorized agent.^ Thus, if it be addressed to A., an acceptance by B., unless for honor, will not bind him.^ Nor can there be a series of accej)tors; and if ® a bill addressed to one be accepted by two persons, the acceptance of the first will be vitiated by having been altered in an essential part," unless made with the acceptor's consent. But if any other person, after an acceptance, subsequently accepts the bill for the purpose of guaranteeing its credit, at the accept- ' Bank of Pittsburg v. Neal, 23 How. 97. " Bank of Pittsburg v. Neal, 23 How. 96. ' Davis V. Clarke, G Q. B. 10; (51 E. C. L. R.); Jenkins v. Hutchinson, 13 Q. B. 744 (66 E. C. L. R.) ; Polhill v. Walter, 3 B. & Ad. 114 (23 E. C. L, R.); May V. Kelly, 27 Aln. 497; Keenan t. Nash, 8 Minn. 409. ' Davis V. Clarke. Q. B. 16 (51 E. C. L. R.); May v. Kelly, 27 Ala. 497. 'Jackson v. Hudson, 2 Camp. 447; Bayley on Bills, 100; Story on Bills, § 354. " Thomson on Bills, 113, 313. There being no agreement as to any guar- anty. WHAT BILLS REQUIRE ACCEPTANCE. 393 or's request, in the usual form of an acceptance, then, if there is a sufficient consideration, he may he bound thereby as a guarantor ; but he is not liable as an acceptor.^ And the addition will not be a material alteration.^ In an English case, where the bill was addressed by John Hart to " Mr. John Hart," payable to me or order — across its face was written, " Accepted, H. J. Clarke " — it was held that Clarke could not be sued as acceptor, and Coleridge, J., said : " Acceptance can only be made by the party addressed or for his honor. Here the last is not pretended, and the first cannot be presumed." ^ A party may be bound as an acceptor by any name or designation he may see fit to adopt, provided it clearly appears by extraneous evidence who was intended ; and if he intends to contract by a certain desig- nation, he is estopped to deny that the name by which he assumed to enter into the contract was the appropriate ap- pellation. " The West Tennessee Department of the Life ' Story ou Bills, § 254 ; Chitty on Bills (13th Am. ed.), 331 ; Jackson v. Hud- son, 3 Camp. 447. In this case the bill was drawn on and accepted by I. Irving. Under his acceptance a defendant wrote "Accepted, Jos. Hudson, payable at, &c." Hudson was sued as acceptor; and plaintiff oif^'red to prove that he had had dealings with Irving, and had refused to trust him further, unless defendant would become his surety, and the defendant, in order to guarantee Irving's credit, wrote the acceptance in the bill. Lord EUenborough said this was no ac- ceptance, l)ut a collateral undertaking, which should have been declared on as such. See Bayley on Bills, 100. In Thomson on Bills, p. 313, it is aiiid : " It seems that a second person may accept a bill addressed to a first, if he accept on the footing expressed or understood at the time the bill was issued that he was to be a cautioner for the first; and if a person in this way become validly a party to a bill, he stands toward the holder in the siime relation as if he were a co- principal, his rights as cautioner merely regulating his right of relief against the true principal." ^ Smith V. Lockridge, 8 Bush (Ky.), 435, (1871). In this case the bill was addressed to W. T. and George Lane, and by them accepted. It was indorsed by S. H. Lane, H. Smith, and J. J. Anderson, and discounted by D. S. Lock ridge. Smith and Anderson, two of the indorsers, claimed that it was accepted by the Lanes only when they indorsed it, and afterward that it was altered by being accepted by J. A. Blaydes, without their knowledge or consent. Blaydes' name was written across the face of the bill as an acceptor ; but the Court held that he could not be an acceptor, and that it was not an alteration which dis- charged the indorsers, because in no wise changing their obligations or duties. ' Davis v. Claike, 6 Ad, & El. (N. S.) 16 (51 E. C. L. R.) 394 ACCEPTANCE OF BILLS OP EXCHANGE. Association of America " would therefore be bound upon an acceptauce made by its proper officer of a bill addressed to "The Western Department of the Life Association of Amei'ica." ^ § 486. Where a person other than the one addressed as drawee writes his name across the face of the bill, it would be competent for him to show as between immediate parties (and on account of its ambiguity, perhaps, as to others) in what character he intended to be bound." But if a party accept a bill in which no drawee is named, it will be regarded as acknowledging that he was the drawee, and will operate as a complete acccepted instrument.^ § 487. An accejytance may he made hy an agent; but certainly, the holder may require the production by him of clear and explicit authority from his principal to accept in his name, and without its production may treat the bill as dis- lionored;* and it has been doubted whether the holder is bound to acquiesce in an acceptance by an agent, as such an acceptance would multiply the proofs of the holder's title.' But if the agency were clear, we think the holder would be bound to take the agent's acceptance — acceptance by procura- tion as it is termed.* If the holder takes an acceptance from one unduly alleging his agency, and without giving no- tice to antecedent parties, they will be released, if the princi- pal refuses to ratify the act.'' If the bill be drawn upon an agent in his individual name, it would seem clear on principle that none but he, as ■ Hasoall t. Life Association of America, 13 N. Y. S. C. (5 Han), 153. See vol. I, § 399. '' Curry v. Reynolds, 44 Ala. 349. " Wheeler v. Webster, 1 E. D. Smith, 1 ; 1 Pars. N. & B. S89 ; Gray v. Milner, 8 Taunt. 739; 3 J. B. Moore, 90 ; Davis v. Clarke, 6 Q. B. 16 ; Thomson on Bills (Wilsou's ed.) 313. Atwood V. Munniugs, 7 B. & C. 378 ; (14 E. C. L. B.) ; Byles on Bills (Shars- wood'sed.), 113; Chitty (13th Am. ed.), 320; Thomson on Bills, 211 ; Eosooenn Bills, 71 ; Beawes, 87. =■ Coore V. Callaway, 1 Esp. 115 ; Byles, 113; Chitty, 331 ; Roscoe, 171, " Beawes, No. 87 ; Thomson on Bills, 311. ' Thomson, 311 ; Chitty, 331. WHAT BILLS KEQUIEE ACCEPTANCE. 395 an individual, could accept. But in G-eorgia, where the drawee was designated simply as " William S. Scruggs," an acceptance by him "forthe Opinion Newspaper," was held to bind the firm doing business under that name.^ This view could only be sustained upon the theory that the firm adopted and used his name. § 488. Bills drawn on joint parties and pa/rtners. — If a bill is drawn on two persons not partners, both should accept, and if either refuse, the bill may be protested for his non- acceptance ; ^ but the party accepting will be bound by his acceptance.^ If the bill is addressed to two persons, " or either of them," acceptance by either is a sufiicient compli- ance with its mandate.* If a bill be drawn upon a firm, it may be accepted by any one of the partners in the partnership name ; ^ and it will be a good acceptance of the firm (as we think, although the au- thorities are in conflict), if only the name of the accepting partner be signed, as it will be understood to signify that the firm responds to the request of the bill, and that the signing partner attests it.® But whether the acceptance be in the name of the firm, or of the signing partner, it will not bind the firm as against the drawer cognizant of the facts, unless the bill was drawn for partnership purposes,'' except in the hands of a lonajlde holder for value, without notice, in which event it would be valid whether drawn for partnership pur- poses or otherwise.® ' Markham v. Hazen, 48 Ga. 570. = Chitty on Bills (13th Am. ed.), 73, 321 ; Dupays v. Shepherd, Holt, 297. = Owen V. Van Uster, 10 0. B. 318 (70 E. C. L. R.) ; Bayley on Bills, 40, 101 ; Byles [*180], 306. " Thomson on Bills, 212. ' Pinkney v. Hall, 1 Salk. 126 (1(596) ; Mason y. Eumsey, 1 Camp. 384. ° Byles on Bills (Sharswood's ed.), 126 ; Mason v. Rumsey, 1 Camp. 384 ; Chitty (13th Am. ed.), 53-54 ; Wells v. Masterman, 2 Esp. 731. The contrary doctrine has been held. See Heenan y. Nash, 8 Minn. 409 ; and ante, Chapter IX, on Partners as Parties, § 362. ' Pinkney v. Hall, 1 Salk. 126. » Catskill Bank v. Stall, 15 Wend. 364 ; Bairs v. Cochran, 4 Sergt. & R. 397 ; Livington v. Roosevelt, 4 Johns, 351. 396 ACCEPTANCE OF BILLS OF EXCHANGE. § 489. If a bill drawn oq an individual member of a firm be accepted by him in the name of the firm, it will bind him individually, i)ut uot the firm ;^ and if a bill be drawn on a firm, and accepted by a person describing himself as manager or agent, there may be an action against him as acceptor, although he may have falsely affirmed his authority to accept, and the firm be not bouud.^ An acceptance of a bill drawn on him by a member of a firm will bind him only, although expressed to be on account of the firm.^ If a new partner be introduced into a firm, an acceptance by the old partners for an old debt in the name of the new firm will not, in the hands of the party taking it and cognizant of the facts, bind the new partner.* § 490. In the third place, as to the time ivhen acceptance may he made. — The acceptor may write his acceptance before the bill is drawn, and deliver it in blank to be filled up; and in that event it will date, and the statute of limitations begin to run, from the time it is thus completed. It is not neces- sary that the bill should be drawn by the same person to whom the acceptor handed the blank acceptance.'' And where the blank acceptance was filled up after the lapse of twelve years, and, as the jury found, after the lapse of a rea- sonable time, the acceptor ^v'as held liable to a lona fide in- dorsee.^ Furthermore, the acceptor in blank will be liable for any amount for which the bill is filled up when it has passed into the hands of any hona fide holder, without notice thiat his authority has been exceeded.' Acceptance dates from delivery, until whiich time it is re- vocable ; ^ but if uot in the hands of the acceptor, and ac- cepted verbally, this principle would have no application.' ' Nichols V. Diamond, 24 Bug. Law & E(i.403. = Oweu V. Van Uster, 10 C. B. 318 (,70 E. C. L. R.) = Thomson on Bills, 213. « Shireff v. Wilks, 1 East, 48. ' Schultz 7. Ashley, 7 C. & P. 90 (32 E. C. L. R.) See ante, § 143 ct seq. ' Montague v. Perkins, 33 Eng. L. & Eq. 516. ' Bank of Commonwealth v. Curry, 3 Dana, 142; Moody v. Threlkeld, 13 6a. 55; Byles on Bills (Sharswood's ed.) 308. " Cox V. Troy, 5 B. & Aid. 474 ; (but see Thornton v. Dick, 4 Esp. 370 ;) Johnson on Bills, 33. " 1 Parsons N. & B. 391. WHAT BILLS EEQUIEB ACCEPTANCE. 397 An acceptance may be also after the bill has been dis- counted, and is just as binding then as if made before.'^ If there is a settled usage on the part of the bank to which a bill is sent for collection, not to note it as dishonored, after calling on the drawee for acceptance, it will be a good defense against the charge of negligence.^ § 491. There may be acceptance of a bill after it has be- come payable, and after protest, in which case the bill is re- garded as payable on demand.^ And after acceptance has been once refused, the drawee may afterward accept, and bind himself as acceptor — but he cannot bind the other par- ties unless the bill was duly protested.* Death of the drawer is no revocation of a bill in the hands , of a hona fide holder ; and therefore, after his death, it may be accepted by the drawee, although he has knowledge of that fact.^ The presumption is that a bill was accepted be- fore maturity, and within a reasonable time after date.^ § 492. Drawee may deliberate twenty-four hours whether or not to accept. — When the bill is presented to the drawee for acceptance, he is entitled, if he desires it, to a reasonable time to examine into the state of his accounts with the drawer, and deliberate whether or not he will honor the bill. To afford him this opportunity, wbich it may be very necessary for him to avail of, he is allowed twenty-four hours, and it is usual to leave the bill with him for that period ; "^ though it ' Mechanics' Bank v. Livingston, 33 Barb. 458. = Bank of Washington v. Triplett, 1 Pet. 35. ' Billing V. Devaux, 3 Man. & G. 565 ; Christie v. Pearl, 7 M. & W. 491 ; Jack- son V. Pigot, 1 Ld. Raym. 364; Mitford v. Walcot, Id. 374; Bayley, 181 ; Story, § 350; Williams v. Winans, 3 Green, 339; StockweU v. Bramble, 3 Ind. 438; Bank of Louisville v. EUery, 34 Barb. 630; Kyd on Bills, 73; Roscoe, 173. * Wynne v. Raikes, 5 East, 514; Thomson on Bills (Wilson's ed.) 314; Ohitty [*386], 334. " Cutts V. Perkins, 13 Mass. 306; Thomson on Bills, 315; Chitty [*387], 335; Hammond v. Barclay, 3 East, 337. See post, § 498, and Chapter on Checks, § 1618, A. » Roberts v. Bethell, 13 C. B. 778 (74 E. C. L. R.) ' Connelly v. McKean, 04 Penn. St R. 113; Case v. Burt, 15 Mich. 83; Over- man V. Hoboken City Bank, 31 N. J. L. R. (3 Vroom) 563 ; Montgomery County 398 ACCBPTAKCE OF BILLS OF EXCHANGE. has "been said that if the post goes out in the meantime, the bill should be protested immediately if not accepted, and no- tice of dishonor sent.^ But this rule is too rigid,^ especially in countries like the United States, in which the mail facili- ties are so great ; nor does it consist with the rule allowing a whole day for preparation of notice. But if the drawee refuses to accept within the twenty- four hours, the bill must be protested immediately ; ® and if at the end of twenty-four hours the drawee does not signify his acceptance, protest must be immediately made, and notice given.* § 493. WTien acceptance irrevocahle. — "When the bill is once accepted and issued, the acceptance is irrevocable. But a drawee, although he has written his acceptance on the bill, may change his mind and cancel it before redelivery of the bill to the holder.* And where a bill was returned by the drawee with an obliterated acceptance, without evidence to account for the obliteration, it was held that there could be no recovery upon it." But after the acceptance has once been communicated to the holder — as by redelivery of the bill, accepted — -it has been said that even with the holder's consent the drawee can- not then revoke, because the drawer and indorsers have ac- quired an interest in the acceptance.'' But if it were discov- Bank v. Albany City Bank, 8 Barb, 399; 1 Parsons on Contracts, 266; Bellasis V. Hester, 1 Ld. Raym. 380 ; Ingram v. Forster, 3 J. P. Smith, 343 ; Byles on Bills (Sharswood's ed.) 303 ; 1 Parsons N. & B. 348 ; Bnyley on Bills (Am. ed.) 139; Story on Bills, § 237; Kyd, 136; Roscoe, 46; Edwards, 400; Chitty on Bills (13 Am. ed.) 317, 331 ; Johnson on Bills, 30. ' Bellasis v. Hester, 1 Ld. Raym. 280; Thomson on Bills (Wilson's ed.) 318; Beawes, No. 17; Byles on Bills (Sharswood's ed.) 303. ' Morrison v. Buchanan, 6 C. & P. 18; Chitty on Bills (13 Am. ed.) 317-331. ' 1 Parsons N. & B. 348; Chitty on Bills (13 Am. ed.) [*279], 317; Edwards, 400, " Ingram v. Forster, 3 J. P. Smith, 342. ' Cox V. Troy, 5 B. & Aid. 474 ; 1 Dow. & Ry. 38 ; Chitty on Bills [*308], 347 ; EdwardSr 418. ° Cox V. Troy, 5 B. & Aid. 474; 1 Dow. & Ry. 38. This was previously doubted. Chitty on Bills, [*308], 347. Thomson on Bills, 230; Byles (Shars- wood's ed.) [*189], 320. ' Chitty [*808], 347. WHAT BILLS EEQUIEE ACCEPTANCE. 399 ered by the acceptor immediately after the accepted bill had been redelivered to the drawee that he was not in funds as he had supposed, so that his acceptance was, in fact, made imder a mistake, he may recall and revoke it, provided there be yet time for the holder to notify the drawer and indorsers, and save himself from loss.^ If the drawee retain the bill after intimating his acceptance, he cannot return and re- voke it.^ § 494. As to the date of aeoeptance.—li the acceptance bears a date, it will be taken as prima facie evidence of the time when it was made, even when the date is in a different handwriting from the rest of the acceptance.* When the ac- ceptance bears no date, there is no presumption that it was made at the date of drawing ; but, on the contrary, it will be presumed that it was made afterward.* The presumption is, that it was made within a reasonable time after drawing, and prior to the term of payment.^ It is said, in Pardessus, that it may be inferred to have been accepted on the date of the bill." § 495. "Where a bill (says Mr. Chitty) payable at days, usances, or otherwise, after sight, is accepted, it is usual and proper to require the drawee to certify or write the day of the presentment and of the acceptance, by which means, in case of dispute, the same evidence which will establish the handwriting to the acceptance itself will also prove the time it was made.'^ But it has been decided that if, on production of such a biU, an acceptance appears to have been written by the defendant under a date which is not in his handwrit- ing, the date is evidence of the time of acceptance, because it is the usual course of business in such cases for a clerk to write the date, and for the party to write his acceptance ' Irving Bank v. Wetherald, 36 N. T. 835; see Chapter XLIX, on Checks, Sect. II. Vol. 3. = Smith v. M'Lure, 5 East, 476. ' Gloasup V. Jacob, 4 Camp. 327; 1 Stark, 70; Thomson on Bills, 317. * Begbi V. Levi, 1 C. & J. 180. * Roberts v. Bethel, 33 L. J. C. P. 69. * 1 Pardessus, 393. ' Chitty on Bills (18 Am. ed.) [*393], 330. 400 ACCEPTANCE OE BILLS OF EXCHANGE. under the date.^ If there be no date, it may be inferred to have been accepted on the date of the bill.^ It has been suggested that when accepting a foreign bill for a large amount, and without advice, it is advisable, and a proper precaution, to specify the amount in words and fig- ures (lly innocent, he ought not, in our opinion, to profit by the mistake into which he may, by his own prior mistake, have led the other ; at least, if the mistake is discovered before any alteration in tbe situation of any of the other parties, that is, while the remedies of all the parties entitled to remedy are left entire, and no one is discharged by lachts." = Phillips V. Thurn, 18 Com. B. N. S. 694 (1865), Erie, 0. J., said : " I take it to be clear that if the defendant had not intervened, and the action had been brought by the holder of the bill against the drawer, the drawer would have been by law compelled to admit that the bill was a valid bill payable to bearer. * * * * It seems to me that there is good reason for saying that that which the drawer would be estopped from denying, the acceptor for honor should also 424 ACCEPTANCE OF BILLS OF EXCHANGE. Why, indeed, the acceptor mpra protest should not be bound by the same rules which ajiply to an ordinary acceptor in the usual course of business we cannot perceive. It is his own voluntary act, and unless he has been imposed upon by the holder of the bill to such an extent as to warrant a de- fense ou the distinct ground of fraud, he should, we think, be held up to the strict performance of his engagement, and estopped from denying any fact — such as the validity of the signatures of parties — which it presupposes.^ Certainly when the bill has passed into the hands of a bona fide holder for value after the acceptance supra protest^ he could not then be permitted to open the question of forgery.^ § 529. The holder is in no case bound to take an accept- ance for honor ; '' but if he receives it, and it is for the honor of a particular party, he cannot sue such party until the ma- turity of the bill, and its dishonor by the acceptor supra protest.'^ And if the acceptance is for the honor of all the parties to the bill, he cannot sue any of them until it has matured and been dishonored.'^ But there seems to be no reason why the holder may not sue prior parties, when the acceptance is for honor of a par- ticular party, after giving them due notice.^ be estopped from denying. I think that he is equally bound to admit that the bill is a valid bill." ' In Byles on Bills (Sharswood'sed.) [*35S],406, it is said: "The acceptor 8'/;)ra jyrotest admits the genuineness of the signature, and is bound by any estoppel bind- ing on the party for whose honor he accepts. Thus, where a bill was drawn in favor of a non-existing person or order, but the name of the drawer, and the name of the payee and rirst indorser were both forged, and the defendant ac- cepted for the honor of the drawer, it was held that the defendant was estopped from disputing that the drawer's signature was genuine, and that the bill was drawn in favor of anon-existing person, was negotiable, and had become payable to bearer." See also Story on Bills, § 263 ; Redlield andBigelow's Leading Cases, 88-63. = Story on Bills, § 263; Salt Springs Bank v. Syracuse Sav. Inst. 62 Barb, 101. ' Chitty on Bills [*a45], 387; Mitford v. Walcott, 13 Mod. 410; Ld. Eaym. 575; Gregory V. Walcup, 1 Comyns, 7!.i ; Pillans v. Van Mierop, 3 Burr. 1663; Byles on Bills (Sharswood's ed.) [*356], 403 ; Edwards on Bills, 443. * Williams v. Germains, 7 B. & C. 468; 1 Wan. & R. 394. ' Story on Bills, § 358; Chitty, p. 375. " Story on Bills, § 258. ACOEPTAKOB FOK HONOK, OR SUPRA PROTEST. 425 § 530. Protest for better security. — There is another species of acceptance for honor which occurs after accept- ance and before the maturity of tlie Vnll, wBen the ac- ceptor absconds or becomes a bankrupt or insolvent.^ In this case the holder is not bound to protest the bill, and bis neglect to do so will not affect his remedy against any prior party.^ But he may make protest if he choose to do so, and it is then called protest for better secu- rity.^ Mr. Chitty says, on this subject : "The custom of mer- chants is stated to be, that if the drawee of a bill of ex- change abscond before the day when the bill is due, the holder may protest it, in order to have better security for the payment, and should give notice to the drawer and in- dorsers of the absconding of the drawee ; and if the acceptor of a foreign bill become bankrupt before it is due, it seems that the holder may also, in such case, protest for better security; but the acceptor is not, on account of the bank- ruptcy of the drawer, compellable to give this security. The neglect to make this protest will not affect the holder's remedy against the drawer and indorsers ; and its principal use appears to be that, by giving notice to the drawers and indorsers of the situation of the acceptor, by which it is become improbable that payment will be made, they are enabled by other means to provide for thie payment of the bill when due, and thereby prevent the loss of re-exchange, &c., occasioned by the return of the bill. It may be recol- lected that, though the drawer or indorsers refuse to give better security, the holder must, nev.ertheless, wait till the bill be due before he can sue either of those parties." * § 531. An acceptor for honor of the drawer thereby re- leases the accommodation acceptor of the bill, because an acceptor for honor can acquire only the rights of the party for whose honor he accepts, and the drawer could not sue the accommodation acceptor.* If the bill be payable at a ' Chitty on Bills [*344], 385. ' Mc parte Wackerbath, 5 Ves. 574. ' Chitty on Bills [*344], 385. ' Ibid. ' McDowell V. Cook, 6 Smedes & M. 420; Gazzam v. Armstrong, 3 Dana, 554. 42G ACCEPTANCE OF BILLS OF EXCHANGE. certain time after sight, and is accepted for honor, the time runs from such acceptance, and not from the presentment to the drawee.^ SECTION VII. THK EFFECT OF ACCEPTANCE WHAT IT ADMITS. § 532. The effect of the acceptance of a bill is to consti- tute the acceptor the principal debtor.^ The bill becomes by the acceptance very similar to a promissory note — the acceptor being the promisoi", and the drawer standing in the relation of an indorser. Bat in respect to the acceptor's position with regard to the drawer, and the amount for which he rendei^s himself liable by accepting the bill, it is well to observe that the ac- ceptance does not entitle the acceptor to chai'ge it in account against the drawer from the date of acceptance, unless he pays the whole amount at the time, or discharges the drawer from all responsibility.' Like the maker of a note, the acceptor is bound by all the terms of the instrument, and if it contain a stipulation for payment of attorney's fees, he is bound by it.* If the acceptance be for the drawer's accommodation, the acceptor does not thereby become entitled to sue the drawer upon the bill ; but \vhen he has paid the bill, and not before, he may recover back the amount from the drawer in an action for money had and received.^ If the acceptor put the bill in circulation, he is estopped from showing it was then paid." § 533. JVJiat acceptance adinits. — It follows from the fact that the acceptor assumes to jjay the bill, and becomes the principal debtor for the amount specified, that acceptance is an admission of everything essential to the existence of such liability. Therefore, acceptance is, in the j^rs^ place, an ' Williams v. Germaine, ? B. & C. 46S ; 1 Man, & R, 394, 403. " Thomson on Bill?, 339. = BractoQ v. Williug, 4 Call, 38 ' Sraitli V. Jluncie National Bank, 29 Ind. 1.58. '- Planters' Bank v.- Douglas, 8 Head, G99. ' Hinlo-a v. Bank of Columbus, 9 Porter (Ala.), 463. TUB EFFECT OF ACCEPTANCE. 427 admission of the signature of the drawer, the drawee beina" supposed to know his correspondent's handwriting, and, by accepting, to acknowledge it ; and in a suit against the ac- ceptor he would not be permitted to plead or show that the handwriting was not the drawer's, and would be bound by his acceptance even though the drawer's name were forged.^ § 534. In the second place, acceptance admits that the acceptor had funds of the drawer in his hands, for the drawing of the bill implies this, and acceptance in the usual course of business only follows when it is the fact. There- fore, the acceptor cannot deny that he was in funds when suit is brought by a holder of the bill ; ^ though as between him- self and the drawer it is only prima facie evidence that the drawer had funds in his hands, and he may rebut this pre- sumption by showing that the acceptance was for the draw- er's accommodation, or otherwise under circumstances which place him under no obligation to pay the bill to him.* But, notwithstanding the presumption that the acceptor has funds of the drawer, yet, where bills have been drawn upon letters of credit to enable a party to purchase and ship merchandise, this presumption is rebutted, and the drawer becomes the primary debtor, and is liable to the acceptor for his advances. But if the acceptor has notice that one of two joint drawers of such a bill has merely loaned his name to give currency ' Wilkinson v. Lutwidge, 1 Strange, 648 (1736). Lord 0. J. Raymond thought acceptance acknowledged handwiiting of the drawer, but was not conclusive evidence. In Jenys v. Fawler, 2 Strange, 946 (1733), it was held that proof of forgery of drawer's handwriting was inadmissible. Hoffman & Co. v. Bank of Milwaukee, 13 Wall. 193; Hortsman v. Henshaw, 11 How. 177; Bank of U. S. V. Bank of Georgia, 10 Wheat. 333; White v. Continental Nat. Bank, 64 N. Y. 316 ; Goddard v. Merchants' Bank, 4 Comst. 147 ; Canal Bank v. Bank of Albany, 1 Hill, 387; Bank of Commerce v. Union Bank, 3 Comst. 235; Levy v. Bank of U. S. 1 Binn. 37; Peoria R. R. Co. v. Neill, 16 111. 360; Ellis v, Ohio Life, &c. Co. 4 Ohio St. 638; Whitney v. Bunnell, 8 La. Ann. 439; Leach v. Buchanan, 4 Esp. 336; Price v. Neal, 3 Burr. 1354; Smith v. Chester, 1 Term R. 6.54; Wilkin- son v. Johnson, 3 Barn. & Ores. 438 ; Sanderson v. Coleman, 4 Man. & G. 309. "Hortsman v. Henshaw, 11 How. 177; Raborg v. Peyton, 3 Wheat. 385; Kemble v. Lull, 3 McLean, 373; Jordan v. Tarkingtou, 4 Dev. 337. = See Chtpteron Consideration, §§ 174-6 ; Turner v. Browder,5 Bush (K'y.),216.. 428 ACCEPTANCE OF BILLS OF EXCHANGE, to the bill, sucli drawer is no more liable to the acceptor than if he had merely indorsed the bill.' § 535. In the tlm^d place, the acceptor admits the ca- pacity of the drawer to draw the bill, for otherwise it would not be valid ; ^ and therefore he cannot set up a plea, that the drawer of a bill, which he had accepted, was a body cor- porate having no legal authority to draw the bill,* or was a bankrupt,* infant,'^ married woman," or fictitious person.' When the bill is drawn in the name of a firm, acceptance ad- mits that there is such a firm,^ and if it be drawn by a person as executor, it admits his right to sue in that character.' § 536. In the fourth place, the acceptor admits the ca- pacity of the payee to indorse the bill when it is drawn pay- able to the payee's order, for by the very act of acceptance he agrees to pay to his order ; ^" and, therefore, he cannot show that at the time of acceptance the payee was an infant," an insane person,'^ a married woman,'^ a bankrupt," or ' Turner v. Browder, 5 B.ish (Ky.), 216 ; ante, § 176. = Story on Bills, § 113; Byles (Sharswood's ed.) [*193], 335; Thomson ob Bills, 230, 231. . = Halifax v. Lyle, 3 Welsby, Hurl. & G. (Exch.) 446. '' Braithwaite v. Gardiner, 8 Q. B. 473 ; Lord Denman, C. J., quoting Lord Abinger's opinion in Pitt v. Chappelew, 8 Mees. & W. 616, said: ' 'Lord Abinger was a high authority on subjects of this kind. It is clear what his opinion was on the point of estoppel in Pitt v. Chappelew, and I think it rests on sound principles. In this case, all parties knowing the bankrupt's situation, the de- fendant accepts a bill drawn by him. He thereby admits that the bankrupt had power to draw upon him; and, therefore, on a short and simple ground, always the best, I am of opinion that the plaintiff has a right to maintain this action." " Taylor v. Croker, 4 Esp. 187; Jones v. Darch, 4 Price, 300. " Smith V. Marsack, 6 C. B. 486 ; Cowton v. Wickersham, 54 Penn. St. 302. ' Cooper V. Meyer, 10 Barn. & C. 468; 5 Man. & B. 887. » Bass V. Clive, 4 Maule & S. 13. ° Aspinall v. Wake, 10 Bing. 51. '» See ante, §§ 93, 242. " Jones V. Darch, 4 Price, 300 (1817). The payee was an infant, and the ac- ceptor knew it when he accepted; Taylor v. Croker, 4 Esp. 187 (1803). The drawers, who were infants, had drawn the bill payable to their own order. Lord Ellenborough held that the acceptance admitted their power to indorse, and the acceptor could not show they were infants. Byles (Sharswood's ed.) [*103], 32.5. '= Smith v. Marsack, 6 C. B, 486 ; see ante, §§ 93, 242. '" Smith V. Marsack, 6 C. B. 485. But in Massachusetts it has been held that evidence of the insanity of the payee at the time the note was executed was ad- missible; Peasleey. Robins, 3 Mete. 104; see ante, § 83. " Drayton y. Dale, 2 Barn. & C. 293 (1823), which was the case of a nota THE EFFECT OF ACCEPTANCE. 42^ a corporation without legal existence.^ It is a general prin- ciple, applicable to all negotiable securities, that a person shall not dispute the power of another to indorse such an instrument, when he asserts by the instrument which he issues to the world that the other has such power.^ Indeed, there could be no reason why the acceptor should be inter- ested to show that the payee was incompetent to make the order; for he has been guaranteed in that regard by the drawer, and may charge the amount in account against him whether the payee were competent or not. § 537. In the fifth place, if the bill be drawn by one pro- fessing to act as agent of the drawer, the acceptance admits his handwriting and authority as agent to draw.^ § 538. What acceptance does not admit. — But beyond these admissions the acceptance does not go. In the first place, it does not admit the genuineness of the signature of the payee when it purports to bear his indorsement, or that of any other indorser, for with their handwriting he is not presumed to be familiar; and, therefore, if the signature of the payee or other indorser be forged, the acceptor will not be bound to pay the bill to any one who is compelled to trace title through such indorsements.* And if he has gone so far as to pay the bill to any one holding it under such forged indorsement, he may, as a general rule, recover back the amount.* The rule would not apply, however, where the drawer had issued the bill with the forged indorsement upon made payable to the order of a bankrupt. Bayley, J., in Drayton v. Dale, supra. Approved in Smith v. Marsack, 6 C. B. 486; see ante, § 343. ' See ante, Chapter III, § 93. " See Chapter XLIl, on Forgery, Sec. III. ' Robinson v. Yarrow, 7 Taunt. 455. * Holt V.Ross, 54 N. Y. 474; Edwards on Bills, 433. In White v. Conti- nental Nat'l Bank, 64 K. Y. 320, Allen, J., says: " The plaintififs as drawees of the bill, were only held to acknowledge the signature of their correspond- ents; by accepting and paying the bill they only vouched for the genuineness of such signatures, and were not held to a knowledge of the want of genuineness of any other part of the instrument, or of any other names appearing thereon, or of the title of the holder." ' lb. ; Canal Bank v. Bank of Albany, 1 Hill (N. Y.) 387; Dick v. Leverich, 11 La. 573; Williams v. Drexel, 14 Md. 566. 430 ACCEPTANCE OP BILLS OF EXCHANGE. it, for then the acceptor could charge the amount in account against him, and as the forged indorsement could in such case subject him to no loss, he would not be entitled to recover back the amount.^ The acceptance does not admit the signa- tuie of the indorser, even when the bill is payable to the drawer's order, and jDurports to be indorsed by him, in the same handwriting as the drawer's.^ But if the drawer is a fictitious person, and the bill is ];)ayable to the drawer's order, the acceptor's undertaking is that he will pay to the signa- ture of the same person that signed for the drawer ; and in suchi case the holder may show, as against the acceptor, that the signature of the fictitious drawer and of the first indorser are in the same handwriting."' § 539. In the second place, acceptance does not admit agency to indorser, which must be proved by the holder in order to recover againt the acceptor, even though the ac- ceptor acknowledges agency to draw the bill, and the in- dorsement was upon it at the time of acceptance. Thus, where a bill was drawn over the signature, " A. Henry p. proc. C. Staeben & Co.," and was expressed to be payable " to our order," and was indorsed in like manner as drawn : " A. Henry p. proc. C. Staeben & Co.," and was accepted by the defendant, and sued on by the plaintiff", it was held that, in order to recover, he must prove the procuration to indorse. And Park, J., said: "The mere acceptance proves the draw- ing, but it never proves the indorsement ; it is not at all nec- essary tkat a power given to draw bills by procuration should enable the agent to indorse by procuration ; the first is a power to get funds into the agent's hands, the other to pay them out."* ' See Chapter XLTI, on Forgery, Sec. Ill; Hortsaian v. Henshaw, 11 How. 177: Meacher v. Fort, 3 Hill (S. C) 227; Coggill v. American Exchange Bank, 1 Comst. 113. ' Robinson v. Yarrow, 7 Taunt. 455 ; Canal Bank v. Bank of Albany, 1 Hill, 2S7; Bcenian v. Duck, 11 M. & W. 257; Williams v. Drexel, 14 Md. 563; see Chapter XLII, on Forgery, Sec. III. ' Cooper V. Meyer, 10 Barn. & C. 468; Beem-vn v. Duck, 11 M. & W. 351. ' Eobinson v. Yarrow, 7 Taunt. 455 (1817). EXTINGUISHMENT OF AOCKPTOE'S OBLIGATION. 431 § 540. la the third place, the acceptance does not admit the genuineness of the terms contained in the body of the in- strument at the time of the acceptance ; and, therefore, if at that time they had been altered so as to purport to bind the. drawer for a larger sum, or in a different manner than that in the original bill, he will not be bound by his acceptance to pay the amount, unless the drawer had by his own carelessness afforded opportunity for the alteration, and the acceptor could therefore charge him in account with the whole amount.^ But where the drawer alters it himself, or acqui- esces in an alteration, before acceptance, it binds him, and therefore the acceptoi-.^ . If the drawer were not responsible for affording the op- portunity for the alteration to be made, the acceptor could not only defend against a recovery upon the bill, but might him- self recover back the amount paid upon it, or, at least, to the extent of the amount for which he would stili remain liable to the drawer.^ If, however, the acceptor were himself re- sponsible for issuing the bill in such a form as to admit of its being easily forged or altered — as where an acceptor wrote his acceptance in blank, on an agreement with the drawer that he should not draw for over $1,000, and the latter in- serted a larger sum and passed the bill to the plaintiff — he would be bound for the whole amount, and could not recover it back if paid.* SECTION YIII. EXTINGUISHMENT OF ACCEPTOe's OBLIGATION. § 541. The obligation of the acceptor may be discharged, extinguished, or waived : (1) by operation of law ; (2) by ' Young V. Grote, 4 Bing. 353; White v. Cont. Nat. Bank, 64 N. Y. 330; Ma- rine Nat. Bank v. National City Bank, 59 N. Y. 68 ; see Chapter XLIX, on Checks, and Chapter XLII, on Forgery; also Chapter XLIII, on Alteration, Sec. VI. " Langton v. Lazarus, 5 Mees. & W. 638-9; AVaiil v. Allen, 3 Mete. (Mass.) 57. " Bank of Commerce v. Union Bank, 3 Comst. 230; see Chapter XLIX, on Checks, Sec. XIII, and XLH, on Forgery, Sec. III. * Van Duzer v. Howe, 31 N. Y. 531. 432 ACCEPTAKCE OF BILLS OF EXCHANGE. payment ; (3) by release ; and (4) by express or implied waiver or agreement of the parties. In the first place, as to discharge by operation of law, this occurs when the acceptor is discharged by force and effect of the laws of the place where the acceptance ^vas made — as for example, by going into bankruptcy, or plead- ing successfully the statute of limitations.^ In the second place, the acceptor may be discharged by payment of the bill according to its tenor. This branch of the subject is elsewhere fully considered,^ as is also the dis- charge by release.^ § 542. In the fourth place, as to when an acceptor may be discharged by the express or implied waiver or agreement of the parties, it is a general principle of law that an execu- tory contract, whether sealed or unsealed, may be discharged before breach by mere verbal agreement, or by a waiver of the rights accruing under it.* But after breach it can only be discharged by payment, release (under seal), or by taking some collateral thing in satisfaction, or by merger by opera- tion of law, as by a judgment, or taking a higher security.'^ But cases of bills of exchange are said to form an exception to this rule, and the liability of the acceptor, or other party, remote or immediate, though complete, may be discharged by an express renunciation of his claim on the part of the holder without consideration.'' ' 1 Parsons N. & B. 328. '' See Chapter XXXVIII, on Payment, Vol. 3. ' See Chapter XL, on Discharges, &c., Sec. II, Vol. 2. ' Story on Bills, § 266; 1 Parsons N. & B. 324 et seq. ; Chitty on Bills [*310], 349. See especially Byles on Bills [*193], 334; Sharswood's note 1 ; also Foster V. Dawber, G Exch. 850, Parke B. ; Dobson v. Espie, 36 L. J. N. S. 340 (1857). " Story on Bills, § 366. • Bylea on Bills (Sharswood's ed ), [*190-1], 333. It is therein said: " It is a general rule of law that a simple contract may, before breach, be waived or dis- charged, without a deed and without a consideration ; but after breach there can be no discharge, except by deed, or upon sufficient consideration. To this rule it has been repeatedly held that contracts on bills of exchange form an excep- tion, and that the liability of the acceptor, or other party remote or immediate, though complete, may be discharged by an express renunciation of his claim on the part of the holder without consideration. The exception seems at first to EXTINGUISHMENT OP ACCEPTOR'S OBLIGATION. 433 § 543. In the case of acceptances for accommodation, the principles upon which this doctrine rests are not difficult to discover. The acceptor is, indeed, according to the form and nature of his contract, primarily liable to the holder. But the debt which he has bound himself to pay, is in every re- spect the debt of another person to the payee, or the holder ; and the payee or holder, while having the right to sue the acceptor as his principal debtor, has such relations to the party for whose accommodation the bill has been accepted, that it is not unnatural for him to be in negotiation with such party respecting its settlement. And when he re- linquishes his claim against the acceptor, it is nothing more than a waiver of his right to hold him as primarily bound for another's debt, for which he may be regarded in some sort, though not to all intents and purposes, as a surety. Thus where the holder knowing that the acceptance was for accommodation, and himself possessed goods of the drawer from the proceeds of which he expected payment, told the acceptor and his creditors that he should look to the drawer, and not come upon the acceptor ; and, in consequence, the acceptor assigned his property for the benefit of his creditors, it was held, that if by the facts an unconditional renuncia- tion was established, it was a discharge of the acceptor, although the goods in the possession of the holder proved to be of little value, and the drawer was insolvent ; but if violate a fundamental rule, but the reason may be that the distinction between a release under seal, and a release not under seal, is quite unkno-wn in foreign countries. An express and complete renunciation by the holder of his claim on any party to the bill is therefore, according to the law merchant, equivalent to a release under seal. And as it would be highly inconvenient to introduce nice distinctions, and nice questions of international law, all the contracts on a foreign bill, though negotiated or made in England, and all the contracts on an inland bill, depending, as they do, on the same law merchant, may be so re- leased. And such a relaxation of the general rule on th^e case of bills of ex- change is not unreasonable on another ground. The money due at the maturity of a bill of exchange is in practice expected to be paid immediately, and in many cases with remedies over in favor of the debtor. Parties liable who are expressly told that recourse "will not, in any event, be had to them, are almost sure, in consequence, to alter their conduct and position." Vol. r.— 28 434 ACCEPTASCB OF BILLS OF EXCHANGE. the words imported only that the renunciation was condi- tional, and that the holder only looked to the drawer in the first instance, the acceptor was not discharged.^ So where the holder arrested the acceptor, and finding that he had accepted for accommodation of Dallas, the drawer, his attorney, took security from Dallas, and wrote to the acceptor tbat " he had settled with Dallas, and he (the acceptor) need not trouble himself any further," it was held that the acceptor was discharged.^ But where an accommodation acceptor applied to the holder to give up the bill, which he refused to do, but said the acceptor should not be troubled about it, it was held, under the circumstances, that the acceptor was not discharged.* § 544. The text writers generally concur in the doctrine that even where the acceptance is for value and in the usual course of business an express renunciation by the holder of the right to proceed against the acceptor, operates as a waiver of such right, and discharges the acceptor.* And there is au- thority to support the doctrine. Where one Walpole, hold- ing a bill accepted by Pulteney, agreed to consider his accept- ance at an end, and wrote in his bill book the memorandum, "Mr. Pulteney's acceptance at an end," and kept the bill from 1772 to 1775 without calling on Pulteney, it was held that the latter was discharged.^ In the cases where the renuncia- tio'n is express, it will discharge the acceptor although with- out consideration, for the reason that it would operate as a fraud upon him to hold otherwise. And the doctrine arises out of the peculiar relations of the parties.'' The acceptor enters into his engagement with funds of the drawer in his ' Whatley V. Trkker, 1 Camp. 35 (1807); Chitty, Jr., 740; Chitty on Billa ['311], 350; Story on Bills, §266; 1 Parsons N. & B. 324. " Black y. Peele, cited in Dingwall v. Duuster, 1 Douglas, 247; Chitty, Jr., 403; Bayley on Dills, 188. » Adams v, Gregg, 2 Stark. 531 (1819) ; Chitty, Jr., 1076. * Bayley on Bills, 187, 188; Story on Bills, § 267; 1 Parsons K & B. 325. ' Walpole V. Pulteney, cited in Dingwall v. Dunster, 1 Douglas, 248 ; Chitty Jr., 401 ; Story on Bills, § 267. ' Byles on Bills [*191], 323 ; see remarks of that author quoted in note 6, § 543. EXTINGUISHMENT OF ACCEPTOR'S OBLIGATION. 435 Lands, or under some business arrangement according to his course of dealing, and if the holder expressly renounces claim against him, his hands are then untied, and he is left free to account to the drawer for the funds in his hands, or at least is no longer bound to appropriate them to the payment of the bill, or to carry out the arrangements contemplated for its payment. To permit the holder, after thus exonerating the acceptor, to recur to him for payment, would work in many cases the harshest injustice, and he is estopped from doing so.^ § 545. It is absolutely requisite according to some au- thorities that the renunciation of claim against the acceptor should be express.^ In a case where the accommodation accept- or wrote to the holder that he had been informed that the drawer had taken up the bill, and given another to his (the holder's) satisfaction, and the holder took no notice of it, but received interest from the drawer for several years, and during that time did not call on the acceptor, it was held that the latter was not discharged. Ashurst, J., said : " An acceptor makes himself a debtor, and his case is different from that of the other parties to the bill. Nothing but an express dis- charge will do." "Willes, J. : "I do not think silence can dis- charge the acceptor. No case of tacit discharge has been pro- duced." Buller, J. : " Nothing but an express agreement can discharge an acceptor." ^ But if an agreement may discharge the acceptor we do not see why it may not be implied as well as expressed. It is the fact and not the form that ' See Story on BQIs, § 367 ; very nearly concording with the text is tlie obser- vation of Professor Parsons, in 1 Parsons N. & B. 336-7, note x, where it is said: " The true ground it is conceived is, that a waiver works by way of estoppel rather than by way of contract. We should prefer to state the rule thus: an ex- press renunciation, founded upon a consideration, or honestly and fairly acted upon by the holder, so as to put him in a worse situationthan if the renunciation had not been made ; or any act upon the part of the holder, giving the acceptor reasonable ground to infer that the former had renounced all claim upon him, and acted upon, amounts to discharge." "Dingwall v. Dunster, 1 Doug. 347; 13 East, 430 (1780); Byles on Bills (Sharswood's ed.) [*191], 323; Edwards on Bills, 485. • Dingwall v. Dunster, mpra. 436 ACCEPTANCE OE BILLS OF EXCHANGE. should be looked to. And gill that is necessary to discharge the acceptor is that the renunciation of claim against him should be clearly made out whether by words or acts. What is meant by the declaration that the renunciation must be express is doubtless nothing more than tbat it must be unmistakable, distinct and direct, and is not to be inferred from the mere circumstance of delay. To say that " the cir- cumstances must amount to an express renunciation " defines the correct doctrine — that it must be equally as clear.^ § 546. It is quite clear that, as the acceptor is the princi- pal debtor, mere delay to proceed against him will not dis- charge him.^ It was so held where, in a suit by an indorsee against the acceptor, no demand was proved till three months after the bill had fallen due, and the drawer had in the mean- time become insolvent.^ Nor will receiving interest from the drawer or indoi'ser;* nor giving time to them when 'See Farquhar v. Southey, 3 Car. & P. 497; Wintermute v. Post, 4 N. J. 420. Iq Partei- v. Leigh, 3 Stark. 23R (1817), indorsee sued acceptor. It appeared that when he threatened suit, the acceptor called to ascertain the amount, and the plaintiff showed an account containing several claims, among which was the bill sued on. The plaintiff said that as to the sum on the bill for £300, he should loot to the drawer for it; that the sum of £160 was due upon it, and that he held the warrant of attorney of an Irish baronet for the amount. The defendant supposing that he was settling the whole of the plaintiff's claim paid the amount, which he said he should not otherwise have done.. The court did not regard the renunciation as unconditional ; but that the holder only in- tended to look to the drawer tirst. This is, we think, the gist of the decision. Lord EUenborough said: "If he does not expressly renounce all claim upon the security, it still remains valid in point of law. If the party were to forego a bill in equity on that account, it would be a good consideration for a renunciation of part of his claim; but the ground of renunciation must be distinctly proved. The plaintiff probably might suppose that Williams (the drawer) would pay the l.iill, and that he should not have occasion to call upon the defendant. I am of opinion that in point of law the circumstances do not amount to an express renunciation, and nothing short of that will be sufficient to discharge the defendant from his acceptance of the bill." Bayley on Bills, 189. " Ante, § 545. = Anderson v. Cleveland, 13 East, 430 (1779). Lord Mansfield said: "The acceptor of a bill or maker of a note always remains liable. The acceptance is proof of having assets in his hands, and he ought never to part with them, un- less he is sure that the bill has been paid by the drawer." * Farquhar v. Southey, 2 Car. & P. 497 ; Moody & M. 14 ; Dingwall v. Dun- ster, 1 Doug. 347. EXTINGUISHMENT OP ACCEPTOR'S OBLIGATIOK. 437 the acceptance is for value.^ And wlien the acceptance is for accommodation, the case will not be altered, as we think,^ though some cases take a different view.* This branch of the subject is amply discussed in the chapter on Principal and Surety.* § 547. Failure of consideration for acceptance. — If the consideration inducing an acceptance afterward fail, it will, nevertheless, be binding to the payee or other holder, if such failure were not occasioned by his fault ; ^ and if by the ac- ceptance the time of payment were extended, or the terms of the bill otherwise varied, the acceptor cannot object to the alteration ; " nor will his obligation be varied by the fact that the bill was accepted after the time of payment had passed.'' § 548. An acceptor, being the primary debtor as to the holder, will not be discharged by taking security from the other parties, or giving them time to pay the bill.^ But taking a co-extensive security from the acceptor himself by specialty will discharge him,^ unless it recognizes the bill as still existing, in which case it will not.-'" If the holder re- ceive from the acceptor another bill indorsed by the acceptor, as satisfaction or security for the first bill, he discharges him both as acceptor and indorser, hj neglect to give him notice of dishonor of the last bill ; " but not if the last bill was given as collateral security and not indorsed by him.^^ § 549. A cancellation by the holder or by a third party is evidence of a waiver, and whether the cancellation in the lat- ter case was by the holder's consent or not, is for the jury to ' Story on Bills, § 268 ; post, § 547. ^ 1 Parsons N. & B. 325. See Chapter XLI, on Discharge of Surety, Vol. 2. ' Ibid. * See Chapter XLI, Vol. 2. » Corbin v. Southgate, 3 Hen. & M. 319. ■ U. S. V. Bank of Metropolis, 15 Pet. 395; 2 Eob. Prac. (N. ed.) 151. ' Mitford V. Wallcot, 1 Salk. 129. " Story on Bills, § 208, and numerous cases cited ; see ante, § 546. ° Ansell V. Baker, 15 Q. B. 20 (69 B. C. L. E.) " Twopenny v. Young, 8 B. & C. 208. " Bridges v. Berry, 3 Taunt. 130. " Bishop V. Rowe, 3 Maule & Sel. S62. 438 ACCEPTANCE OF BILLS OF EXCHANGE. determine.^ If the cancellation is by mistake, it does not operate as a discharge ; ^ but if the holder, knowing the mis- take, causes the bill to be noted for non-acceptance, he is estopped from saying it was accepted.^ ' Sweeting v. Halse, 9 B. & 0. 365 (17 E. C. L. R.) ; 4 Man. & R. 387. "Wilkinson v. Johnson, 3 B. & C. 428; Raper T. Birkbeck, 15 East, 17; Novelli V. Rossi, 2 B. & Ad. 757. = Sproat V. Matthews, 1 T. R. 182; Bentnick v. Dorrien, G East, 199; 1 Par- sons N. & B. 328. CHAPTER XIX. PEOMISES TO ACCEPT BILLS OF EXCHANGE. — HOW AFFECTED BY THE STATUTE OF FRAUDS. SECTION I. ■WRITTEN AND VERBAL PROMISES TO ACOEPT EXISTING AND NON-EXIST- ING BILLS. § 550. First. A written promise to the drawer to accept an existing hill which is communicated to a third -party, and induces him to take the bill upon the credit thereby excited, is undoubtedly, by the decisions in England and in the United States, the same as an actual acceptance. " The de- fendant," said Lord Ellenborough, in such a case, "has thereby enabled another with truth to assert, and furnished him with the means of proving that assertion, by the pro- duction of the defendant's letter, that he had undertaken to accept the bills, which in ordinary mercantile understanding amounts to an acceptance, and by that credit was attached to the bills. * * * It may be for the convenience of mercantile affairs that a bill may be accepted by a collateral writing, without the bill itself coming to the actual touch of the ac- ceptor, which would sometimes create great delay. This ac- ceptance being by writing comes within all the cases cited." ^ And to this extent go all the decisions.* ' Clarke V. Cock, 4 East, 57 (1803). ' McEvers v. Mason, 10 Johns. 313; Goodrich v. Gordon, 15 Johns. 6; Wilson T. Clements, 3 Mass. 10; Greele v. Parker, 5 Wend. 514; iSrant v. Shaw, 16 Mass. 341 ; Edson v. Fuller, 2 Foster, 183 ; 1 Parsons N. & B. 398 ; Cassel v. Dows, 1 Blatchf. C. C. 335; Cook v. Miltenberger, 33 La. Ann. 377; Steman v. Harrison, 42 Penn. St. 57 ; Vance v. Ward, 3 Dana, 95 ; CarroUton Bank v. Tayleur, 16 La. O. S. 490; Russell v. Wiggin, 3 Story C. C. 214; Storer v. Logan, 9 Mass. 58. 440 PROMISES TO ACCEPT BILLS OE EXCHANGE. § 551. Second. A written promise to the drawer to ac- cept a non-existing Mil, wliicli is communicated to a third party, and induces him to take the bill, it is also agreed by the English and United States decisions to be the same as an actual acceptance. The United States Supreme Court de- clares that " upon a review of the cases which are reported, a letter written within a reasonable time before or after the date of a bill of exchange, describing it in terms not to be mistaken, and promising to accept it, is, if shown to the per- son who afterward takes the bill on the credit of the letter, a virtual acceptance." ^ And where the letter was written on the 17th of April, and the bills were drawn on the 1st of May following, and taken on the faith of the promise to accept con- tained in it. Lord Mansfield said : ^ "If one man, to give credit to another, makes an absolute promise to accept his bill, the drawer or any other person may show such promise on the exchange to get credit;" and held that the letter writer would be bound as an accej)tor. To this extent the author- ities generally concur.'' And a telegram, it has been held. would stand on the same footing as a letter.^ In a recent New York case where the defendant authorized in ■\\Titing one Loveland as his agent to draw upon him, and money was advanced upon a bill drawn by the agent in pursuance of such authority, it was said : "The language of the instrument ' Coolidge V. Payson, 2 Wheat. 66 ; Boyce v. Edwards, 4 Pet. Ill ; Schimmel- pennioh v. Bayard, 1 Pet. 264. = Mason v. Hunt, 1 Doug. 297 (1780). ' Kennedy v. Geddes, 8 Porter (Ala.) 268 ; Kendrick v. Campbell, 1 Bailey, 553; Goodrich y. Gordon, 15 Johns. 11 ; Greele v. Parker, 5 Wend. 414; Storer V. Logan, 9 Mass. 58 ; Wilson v. Clements, 3 Mass. 10 ; Gates v. Parker, 43 Me. 544 ; Steman v. Harrison, 42 Penn. St. 57 ; Vance v. Ward, 2 Dana, 95 ; Russell V. Wiggin, 2 Story C. C. 214 ; Wildes v. Savage, 1 Story C. C. 32. But it is also held, in this case, that if the bill be payable after sight, and not after date, a promise to accept a non-existing bill does not amount to an acceptance. * Central Savings Bank v. Richards, 109 Mass. 414, Morton, J. : " The tele- gram sent to the St. Louis Zinc Company was an authority for it to draw the bill of exchange in suit, and necessarily implied a promise to accept it. This tele- gram was shown to the plaintiffs, wlio thereupon discounted the bill. They took the bill upon the faith of the defendants' promise, and are entitled to hold them as acceptors." WRITTEN AND YERBAI4 PEOMISBS. 441 amounts to an unconditional written promise to accept tlie draft, plaintiff having discounted it upon the faith of the au- thority for a valuable consideration.^ § 552. Third. As to a written promise to the drawer to ac- cept an existing bill, which was not communicated to the holder, and therefore did not enter into the induceiiient to take it, the decisions are in a condition of inextricable confusion. In a number of them the inquiry whether or not the holder was induced by the promise to take the bill, is held the criterion of its effect, whether such promise be written or verbal. In others, it is considered immaterial. In an early case, where the bill was drawn April 3d, and the letter, declaring that " it should be duly honored and placed to the drawer's debit," within ten days after, but not communicated to the holder, it was held an acceptance, available to him.^ Subsequently, where the plaintiffs, who were indorsees of the payee, sued the drawee of a bill, who had written a letter to the drawer, after the bill had been protested for non-acceptance while in the plaintiffs' hands, stating that they " would accept or cer- tainly pay all the bills which have hitherto appeared," Lord Ellenborough adhered to this precedent, declaring that he only conformed an established rule of law " on a subject which, least of all others, endured uncertainty and change." ' But this view may be regarded as overruled, for the great preponderance of authority is to the effect that, unless the holder took the bill on the face of the promise, it is not an acceptance.* And in Massachusetts, it has been held that a promise to accept a bill contained in a letter to the drawer, written after the holder took the bill, would not enable him to sue the drawee as acceptor, even though the bill was ex- ' Merchants' Bank v. Griswold, 16 N. Y. S. C. (0 Hun), 565. '' Powell V. Monaier, 1 Atk. 611 (1737). = Wynne v. Raikes, 5 East, 514; 3 Smith, 98, S. C. (1804); see Fairlee v. Herring, 3 Bing. 535 (1836). * Pierson v. Dunlop, 3 Cowp. 571 (1777) ; Kennedy v. Geddes, 8 Porter (Ala.) 268 ; Lagrue v. Woodruff, 28 Ga. 649 ; McEvers v. Mason, 10 Johns. 207 ; Lewis V. Kramer, 3 Md. 389; Storer v. Logan, 9 Mass. 58; Wilson v. Clements, 3 Mass. 10. 442 PU0MIS3S TO ACCBrT BILLS OF EXCHANGE. pressed to "be drawn " against twelve bales of cotton," and had been discounted on the credit thereof.^ There are, however, cases in the United States which hold the contrary view as applied to existing bills, and maintain that they need not have been taken on faith of the promise to make it operate as an acceptance.^ § 553. Fourth. As to a written promise to the drawer to accept a non-existing hill., ivhich was not communicated to the holder before he received it, the decisions are, alike, jarring and perplexing. More than a century ago it was held that a written promise, contained in a letter, to honor a bill to be drawn, operated as an acceptance of it, although, the credit on which the bill was drawn was given before the promise to accept was made ; and the doctrine there recognized is that a naked promise to accept operates as an acceptance, whether the bolder take the bill on the faith of it or not. Lord Mansfield said : " ' I will give the bill due honor,' is the same as accepting it. If a man agrees that he will do the formal part, the law looks upon it (in the case of an acceptance of a bill) as if actually done. This is an engagement ' to accept the bill, if there was a necessity to accept it, and to pay it when due,' and they could not afterward retract. It would be very destructive to trade, and to trust in commercial deal- ing if they could." Mr. Justice Wilmot said: '■'■Fides ser- vanda est / an acceptance for the honor of the draw"er shall bind the acceptor, and so shall a verbal acceptance. And whether this be an actual acceptance, or an agreement to ac- cept, it ought equally to bind." Mr. Justice Yates said : " A promise to accept is the same as an actual acceptance ; and a small matter amounts to an acceptance." Mr. Justice Aston declared that " a promise to accept was an implied ac- ceptance." ^ ' Bank of St. Louis v. Rice, 98 Mass. 288; s. c. 107 Mass. 41. "- Mason v. Dousay, 35 111. 424 ; Jones v. Bank of Iowa, 34 111. 313 ; Read v. Marsh, 5 B. Monr. 8. 'i Pillan V. Van Mierop, 3 Burr. 1633 (1765) ; see ante, § 553. In Read v. Marsh, 5 B. Mon. 10 (1844), Breck, J., said : " It seems to be now WKITTBT^ AKD VERBAL PROMISES. 443 § 554. But Lord Mansfield soon qualified the opinion quoted, by observing in a subsequent case (where, however, the promise was made to the holder of an existing bill), that : " It has been truly said, as a general rule that the mere answer of a merchant to the drawer of a bill, saying, ' he will duly honor it,' is no acceptance unless accompanied with circum- stances which may induce a third person to take the bill by indorsement. But if there are any such circumstances, it may amount to an acceptance, though the answer be con- tained in a letter to the drawer." ^ And this view generally obtains, that the promise to the drawer must induce the holder to take the bill, thereafter drawn, in order to amount to acceptance of it.^ § 555. Fifth. As to a verbal promise to accept an existing bill, which is communicated to the holder, and induces him to take it, it was conceded by Le Blanc, J., in the case cited be- low,^ that it would amount to an acceptance (upon the au- thority of Pierson v. Dunlop, ante, § 554) ; but the bill in question having been drawn subsequent to the promise, this particular question did not arise. § 556. Sixth. As to a verbal promise to accept a non-exist- ing bill, which is communicated tp the holder and induces him to take it; this particular point was decided by the Court of Exchequer, which held that, notwithstanding the bill had been discounted on the credit of the promise, by the holder, it did not amount to an acceptance of it.* And the same view has been taken in the United States.^ § 557. Seventh. As to a verbal promise to accept an exist- ing bill, not communicated to the holder before he tahes it. — We well settled that a letter, promising to accept or protect a hill, whether written before or after it is drawn, may operate as an acceptance, and that it may so operate, although the holder has not been induced by such letter or promise to take the bill." ' Pierson v. Dunlop, 3 Cow. 571 (1777). ' Lewis V. Kramer, 3 Md. 289; Storer v. Logan, 9 Mass. 58; ante, § 553. ' Johnson v. Collings, 1 East, iJ8 (1800). « Bank of Ireland v. Archer, 11 M. & W. (1843), Parke, B. ' Kennedy t. Geddes, 8 Porter (Ala.), 268; see 3 Rob. Prac. (N, ed.) 156. 444 PROMISES TO ACCEPT BILLS OP EXCHANGE. know of no case in which this identical question has been de- cided. Its determination must be reached according to the principles stated under other heads. § 558. Eighth. As to a verhal promise to accept a non-ex- isting hill, not communicated to the holder, ihh was held no acceptance in an English case ; but Le Blanc, J., thought, if he had taken the bill on the faith of the promise, it would be different. Grose, J., declared that : " No authority has been cited to show that by the law merchant a mere promise to accept a bill to be drawn in future, amounts to an actual acceptance of the bill when drawn." Lord Kenyon, C. J., said that the fact that this was a non-existing bill varied the case from those previously decided, and that " he knew not by what law such a promise was binding as an acceptance." ^ And this view is generally concurred in.^ § 559. From this review of the adjudicated cases it wiU be seen how vacillating and conflicting they have been. In some the criterion is declared to be, whether or not the holder took the bill on the faith of the promise. In others, this is deemed immaterial. In some, a distinction is taken between existing and non-existing bills ; and in some be- tween written and verbal promises. And it is often la- mented that anything has been deemed to be an acceptance of a bill but an express acceptance in writing.^ Certainly this would have greatly simplified the law ; but this is not the law. And, amid jarring opinions we are left to pursue the course which reason commends. As verbal acceptance is as effectual as written acceptance, it would seem to follow as a necessary sequence, that a parol promise to accept should be as effectual as a written promise — provided no statutory enactment discriminated between them. In either case, however, it is a sound view of the law, as it seems to ' Johnson v. Collings, 1 East, 98 (1800): see's Rob. Prac. (N. ed.) 153. ^ Bank of Michigan v. Ely, 17 Wend. 508; Wilson v. Clements, 3 Mass. '10. ' Johnson y. Collings, 1 East, 98 (1800), Lord Kenyon, C. J. ; Boyce v. Ed- wards, 4 Pet. 132; Espy v. Bank of Cincinnati, 18 Wall. 620; 2 Rob. Prac. (IT. ed.), 153. WRITTEN AND VERBAL PROMISES. 445 US, to require either that the promise should be made to the holder of the -bill then in .possession of it, in which case he is brought in privity with the drawee;-' or that the promise, when made to the drawer, should have been communicated to the holder, and entered into the inducement to his taking it. It is true, that if there had been an actual acceptance of the bill by parol, or otherwise, before the holder took it, it would be available to him, although he was unconscious of it until afterward. It would be the same as a faintly writ- ten acceptance on the bill, subsequently discovered — for it was engrafted on the bill in law at the time. But a promise to accept is different. When made to the .drawer it may be construed as authority to him to tell the holder that the drawee will accept it. If the drawer exercises that authority the holder is brought in privity with the drawee, and the promise to accept may be regarded, in such a case, as an acceptance by anticipation. But if not communicated to the holder the drawer only is wronged by the breach of prom- ise — the proposition from the drawee to the drawer, the authority from the drawee is unexercised — no new credit or obligation respecting the bill is created ; and the drawer, in case of subsequent dishonor, must be left to sue the drawee for breach of promise to accept. § 560. In order that the promise to accept a non-existing bill shall amount to acceptance, there are two indispensable requisites : First, that it should be written within a reason- able time before the bill is drawn, for otherwise tke drawer will be presumed to have declined to act on the authority granted him to draw, and the drawee will not be construed to have intended an indefinite liability.^ And second, the promise must so describe the bill that there can be no doubt of its application to it. High authorities go further, and declare that the promise must put its finger, so to speak, upon the specific bill; and that otherwise, if the promise be ' Miln T. Prest, 4 Camp. 393 (1816). " Coolidge V. Payson, 3 Wheat. 66 ; Greele t. Parker, 5 Wend. 414 ; Cassel v. Dows, 1 Blatch. C. C. 385. 446 rROMTSBS TO ACCEPT BILLS OP EXCHANGE. broken, the promisor may be sued by tlie drawer for breach of promise to accept ; but cannot be sued by any one as ac- ceptor.^ Thus where a letter of credit addressed to Mr. A. stated : " Mr. B. C, of D., is authorized to draw on us for the amount of any lots of cotton which he may buy and ship to us, as soon after as opportunity will offer; such drafts will be duly honored by, yours, &c., E. F. ; " it was held that it did not operate as an acceptance of certain bills drawn by A. on E. F. The reasons assigned were, first, that it was written two years before the bill was drawn, and, further, "what is conclusive against its being considered an accept- ance," said Thompson, J., "is, that it has no reference what- ever to these particular bills, but is a general authority to draw at any time, and to any amount, upon lots of cotton shipped to them.^ § 561. But, while it should clearly appear that the bill corresponds to the authority, or promise, we cannot perceive that there should be any nicety of description either as to number, amount, date, or otherwise. The burden of proof is upon the holder to establish that l)y comparing the face of the bill with the promise ; or the bill in connection with the transaction in which it is drawn with the promise — that it comes fairly and reasonably within its terms. This done, there can be no reason why the promisor may not be sued as an acceptor, as well as for breach of promise to accept. In either case the correspondence of the bill with the promise must be proved, and a cause of action existing there does not seem to be any sufficient reason for determining that the character of the proof must shape its form, and also de- termine wljether it shall be brought by the holder of the bill who has taken it on the faith of the promise, or by the drawer, whose just expectations have been disappointed. The doctrine that the drawer may sue for breach of promise ' Coolidge V. Paj'son, 2 Wheat. 66; Boyce v. Edwards, 4 Pet. Ill; Schim- melpennich V. Bayard, 1 Pet. 264; Cassel v. Dows, 1 Blatch. 335; Carrollton Bank v. Tayleur, 16 La. O. 8. 490. ' Boyce v. Edwards, 4 Pet. 11. WRITTEN AND VEKBAL PROMISES. 447 to accept when the bill is not accurately described in the promise, hut that such promise does not operate as an accept- ance, has been well said to rest on a distinction without a difference.^ And in New Yoik the views here expressed have been adopted in numerous cases. "Where the letter of credit addressed to the drawers ran, " I hereby authorize you to draw on me, at ninety days, from time to time, for such amounts as you may require, provided that the whole amount running and unpaid shall not exceed three thousand dollars, &c.," Bronson, J.,^ after quoting the cases cited in the sub- joined note,^ said: "These cases show that the written promise to accept need not contain a particular description or identification of the bill to be drawn. It is enough that it be drawn in pursuance of the authority. The plaintiff" re- ceived and discounted the bill upon the faith of the letter, and it was drawn in pursuance of the authority ; the judge was right in charging the jury that there was a sufficient ac- ceptance." In a recent Illinois case this view was admirably stated and illustrated.^ ' Bissell V. Lewis, 4 Mich. 4f)0; Nelson v. First Nat Bank, 48 111. 39. ' Ulster County Bank v. McFarland, 5 Hill, 444 (1843) ; 3 Denio, 553 (1846). 'Parker v. Greele, 3 Wend. 545; Greele v. Parker, 5 Wend. 414; Bank of Michigan v. Ely, 17 Wend. 508. * In Nelson v. First National Bank, 49 111. 39, it appeared that a party had taken a check upon the faith of a promise by the bank to pay the drawer's check. The Court said; ''It is objected in the present case by counsel for appellee, that the pi'omise to pay by the bank did not sufficiently identify the checks to which the promise was to be applied, and the case of Boyce v. Edwards, 4 Pet. 122, is cited as an authority in point. The authority of that case is certainly to the ef- fect that the promise of the bank cannot be treated as a technical acceptance, for want of identification of the checks. We may be permitted to say, however, that the difterence between a promise to accept a particular bill or check to be thereafter drawn, and a promise to accept all checks which a person might draw for a specific purpose, is so extremely technical and refined that we should be in- clined, wTiere the plaintiff had received the check or bill upon the faith of the promise, and had sued on the promise as an acceptance, to hold with the Su- preme Court of Michigan, Bissell v. Lewis, 4 Mich. 450, that it was a distinc- tion without a difference. It seems to us, a fair construction of the language of Chief Justice l^Iarshall would require, not that the promise should describe the bill to be drawn and accepted, by its date and amount, and the name of the drawee, as that would be generally impossible ; but merely in such a mode that there could be no possible doubt as to the application of the promise to the bill 448 PROMISES TO ACCEPT BILLS OF EXCHANGE. § 562. The rule that the promise to accept, designating the specific bill, amounts to an acceptance, seems applicable only to the cases of bills payable on demand, or at a fixed time after date, and not to bills payable at or after sight ; for, in order to constitute an acceptance in the latter cases, a presentment is indispensable, since the time that the bill is to run cannot be otherwise ascertained.^ And a mere promise to accept without more, it is thought, applies only to bills pay- able at the drawee's or payee's place of business.^ An offer to accept a draft which is still in the drawer's to be drawn. A description of sufficient certainty could thus be made to apply to a series of bills, as well as to one bill. In tlie present case, for example, there can be no difficulty in applying the promise of the bank to the check under con- sideration. Indeed, in this very case of Boyce v. Edwards, the court, while giving so technical a construction to the language of Chief Justice Marshall, say the reason of the rule is, ' that the party who takes the bill upon the credit of such authority may not be mistaken in its application.' If that be the reason of the rule, it would seem that any description should be held sufficiently certain which would leave no doubt that a particular bill or series of bills was intended by the promise, and had been negotiated upon its faith." " The question, however, whether the promise in this case can be considered a technical acceptance, we do not propose to decide, and it is, indeed, of no practical importance, for in this same case of Boj'ce v. Edwards, on which counsel for appellant rely as showing the promise not to be an actual acceptance, it is held that, though a recovery cannot be had upon the bill as an accepted bill, it may be had in an action founded upon a breach of the promise to accept. In an action of the latter character the court say, ' the evidence may be of a more general character, and the authority to draw may be collected from circumstances, and extended to all bills coming fairly within' the scope of the promise.' The court further say, ' as respects the rights and the remedy of the immediate parties to the promise to accept, and all others who may take bills upon the credit of such promise, they are equally secure and equally attainable by an action for the breach of the promise to accept, as they could be by an action on the bill itseltV That a recovery may be had in an action of the character above indicated, is also held in Casscl v. Dows, 1 Blatch. 335; Russell v. Wiggins, 2 Story, 213; Lonsdale v. Lafayette Bank, 18 Ohio, 136; Bissell v. Lewis, 4 Mich. 450. See also Storerv. Logan, 9 Mass. 55; Carnegie v. Morrison, 2 Mete. 4C6; Goodrich V. Gordon, 15 Johns. 6 ; Schimmelpennich v. Bayard, 1 Pet. 264." "That the promise of the bank in this case so far identified the checks to which it was to be applied as to enable the appellant to maintain an action for its breach, is settled by the foregoing authorities and by others which might be cited." ' See Story on Bills (Bennett's ed.), § 249; Edwards on Bills, 414; Wildes v. Savage, 1 Story C. C. R. 28. ^ Michigan State Bank v. Leavenworth, 28 Vt. 209. WRITTEN AND VERBAL PROMISES. 449 Lands may be withdrawn at any time before it has been act- ually presented for acceptance.^ § 563. In respect to the person who may avail himself of an acceptance^ it is obvious that if it be written upon the bill, every holder acquires it as constituting in chief the instrument itself And there seems to be no difference in the law when the acceptance is contained in a separate writing, or has been by parol merely, and whether the holder has been informed of its existence or not. Thus, where a letter was written by the drawees of a bill in England to the drawer in America, stating that " they would certainly accept or pay the bill," it was held an acceptance in law, al- though the bill was refused payment, and the letter was not received by the drawer until after the bill became due.^ And so, where there had been a parol acceptance of a bill, it was held that the acceptor was bound to the indorsee, al- though the latter had caused the bill to be protested in igno- rance of STjch acceptance. " It has been determined in a great variety of cases," said Best, C. J., " that if a bill comes into a man's hands with a parol acceptance, though the party who receives the bill does not know of that parol acceptance, he has a right to avail himself of it afterward. It is impossible for any man to doubt, on principles of common sense, that such ought to be the law ; for if I take a bill, I take it with every advan- tage .the holder had before it came into my hands. , * * If the plaintiffs were ignorant of this (the parol acceptance), it is quite impossible that that which they have done in igno- rance can prejudice any right which was before vested in them." * § 564, The measure of damages for non-performance of an agreement to accept a draft for the drawer's accommoda- tion, which is still in his hands, is the inconvenience and loss thereby occasioned to him, and not the amount of the draft.* ' Ilsley V. Jones, 12 Gray, 260. ' Wynne v. RaikeSj 5 East, 514 (1804). ' Fairlee v. Herring, 3 Bing. 625; 11 Moore, 520, S. C. (1826). * Ilsley T. Jones, 12 Gray, 260. Vol. I.— 29 450 PEOMISBS TO ACCEPT BILLS OF EXCHANGE. In ease a debt is lost by the negligence of an agent to pre- sent the bill for acceptance or payment, the measure of dam- ages is prima facie the amount of the bill ; but evidence is admissible to reduce the amount to a nominal sum.^ § 565. If, by promise and liability to accept, a drawee induces a drawer to draw upon him, and then refuses to honor the bill, he will be liable for all damages incurred, in- cluding protest. In a case before the U. S. Supreme Court it appeared that the defendant had ordered the plaintiff to purchase salt for him, and draw on him for the amount, and he having so purchased and drawn, it was held that the de- fendant was bound to accept the bills, and having failed to do so, that the plaintiff was entitled to recover the amount of the bills, with damages and costs of protest, upon a count for money paid and expended, and that the bills themselves were good evidence on that count.^ It seems that if a person should write a factor that he had consigned him certain goods, and would draw a bill on the credit thereof for a certain amount, the factor, if he ac- cepted the consignment, would be bound to accept the bill ; and that the payee of such a bill could sue the factor as upon a breach of promise to accept.^ SECTION II. HOW PAEOL ACCEPTANCE IS AFFECTED BY THE STATUTE OF FEATJDS. § 566. In those States where there is no statute prescrib- ing what shall constitute an acceptance, the question of the validity of a verbal acceptance may become referable to the statute of frauds, which declares that all promises to pay the debt of another shall be void unless in writing-. An eminent legal writer says on this subject that : "The parol acceptance being no more than a parol promise, it seems to the author that whether or not the acceptance can be charged on such " Allen V. Suydam, 30 Wend. 331 ; Van Wort v. Woolley, 5 Dow. & Ry. ' Riggs V. Lindsay, 7 Cranch, 500. = 1 Parsons N. & B. 391. HOW AFFECTED BY STATUTE OF FRAUDS. 451 promise may depend on whether the promise is to pay a debt of his own, or to answer for the debt of another. For, in the latter case, no action can be lawfully brought unless the prom- ise, or some memorandum or note thereof, be in writing and signed by the party to be charged thereby or his agent. Such is the provision of the Code of Virginia." ^ This view has been taken in Maine, where it was held that a parol prom- ise to accept an order from a debtor in favor of his creditor, between whom and the maker of the promise there was no privity, was invalid under the statute of frauds, as a promise to pay the debt of another.^ And there are other authorities to the same eflPect — that acceptance must be in writing if it be to pay the debt of another, otherwise it will be void.* § 567. It may well be doubted, however, whether or not the statute of frauds applies to that class of engagements which are regulated by the peculiar doctrines of the law merchant, and the weight of reason and of authority incline us to the opinion that it does not. A recent discriminating writer on " Verbal Agreements " lays it down as a cardinal principle, that " contracts the construction, validity and evi- dence of which depend upon so much of the law merchant as the common law recognizes, or the provisions of some other statute, are exceptions to the operation of this clause of the statute of frauds ; " * and the numerous cases which have held a verbal acceptance or promise to accept as binding are gen. erally based upon the open assertion or tacit acknowledg- ment of this theory. A standard author considers a bill of exchange as a preferable form of security, on the ground that the statute of frauds does not apply to it ; ^ and such is the ' Conway Robinson, in liis Practice, Vol. 3, new ed. p. 153. " Plummer v. Lyman, 49 Me. 239. ' Wakefield v. Grreenhood, 39 Cal. 600, Sawyer, J., dissenting ; Manley v. Geagan, 105 Mass. 445. * Throop on Verbal Agreements, p. 159, § 85. ^ Chitty on Bills, page 4, in which it is said ; " This security is in some re- spects preferable to many others of a more formal nature ; for each of the parties to a bill, by merely writing his name upon it as drawer, acceptor, or indorser impliedly guarantees the due payment of it at maturity, and the consideration. 452 PROMISES TO ACCEPT BILLS OE EXCHANGE. general understanding, as we believe, of the commercial world.^ § 568. It is not necessary, however, as it seems, to main- tain that the statute of frauds is wholly inapplicable to the cases arising under the law merchant (although such is, as we think, the true doctrine), in order to sustain the validity of verbal acceptances and promises to accept. They may be enforced in some cases upon well established principles of estoppel. The theory of a bill of exchange is that the drawer puts the payee in his place, and gives him the right to receive funds in the drawee's hands belonging to him. When the drawee accepts or promises to accept, he says, in effect, to the payee, "It is true, I have funds of the drawer, and will pay them to you as he directs." Now, if he really has funds, he does not undertake to pay " the debt of another " than him- self, but simply to pay his own debt "to another" than his in respect of which lie became a paity to it, can rarely be inquired into; where- as, in the case of an ordinary guaranty, the statute against frauds requires the consideration to be expressed, and other matters of form which frequently ren- der an implied guaranty wholly imperative." In Nelson v. First National Bank of Chicago, 48 III. 41, where a parol promise to pay checks of the drawer was held binding, the Comt said, i^er Lawrence, J. : " If a parol promise to accept an existing though non-present check is binding, we are wholly unable to discover why it should not be equally so as to a non-existing bill, under the authority of the American cases, in none of which is any distinction made between parol and written promises of this character, except where a written promise is expressly required by statute." See ante, ])p. 416, 417. ' Butler V. Prentiss, 6 Ma.ss. 430, Parsons, C. J., says: "Neither a bill of ex- change on its face nor the indorsements are within the statute of frauds." In Pillans V. Van Mierop, 3 Burr, 1674, the defendants, in expectation of having funds of the payee in their hands, agreed to honor the plaintiffs draft to be thereafter drawn to reimburse them for money lent him. After the loan, but be- fore the draft was drawn, the payee failed, and the defendants notified the plaint, iff that the draft would not be accepted; but it was drawn nevertheless and dis- honored. The agreement being by written correspondence, no question arose as to the statute of frauds; but Lord Mansfield said he had no idea that "promises for the debt of another" were applicable to the present case; that this was a mercantile transaction, and credit was given upon a supposition "that the person who was to draw upon the undertakers v^ithin a certain time had goods in his hands, or would have them. Here the plaintiffs trusted to this undertaking, therefore it is quite upon another foundation than that of a naked promise from one to pay the debt of another." See Spalding v. Andrews, 48 Penn. St. 411. HOW AFFECTED BY STATUTE OP FRAUDS, 453 original creditor, as is conceded ; ^ and when an acceptance or promise to accept is communicated to the holder, and he takes the bill on the faith thereof, he has a right to presume the condition of things which the acceptor or promisor to ac- cept impliedly asserts, and such acceptor or promisor should be estopped from denying it. A promise by A. to pay his debt to B., by paying B.'s debt to C, has been well said, in Wisconsin, by Dixon, C. J., not to come under the statute of frauds, because simply a promise to pay his own debt "in that particular way." ^ § 569. There are cases which hold that a verbal accept- ance" without funds, or promise to accept, would not be valid, no consideration being given to the inquiry whether or not the holder knew the fact that the acceptance or promise was for accommodation.^ When the holder knows such promise or acceptance to be for accommodation, it stands on the same footing as a promise to indorse, which must be in writing in order to be valid, being plainly an engagement to answer for the debt of another;* but the inferences to be drawn without such knowledge are altogether different, and it would create rather than prevent fraud, to permit the drawee to repudiate his acknowledgment of funds after a third party has contracted upon the faith of it. § 570. Where there is a new and independent considera- tion moving at the time from the party to whom the promise is made, the statute of frauds does not apply.' Thus, the United States Supreme Court held, that if a person verbally ' Shields v. Middleton, 3 Crancb, C. 0. 2U5; Van Reimsdyckv. Kane, 1 Gall. 0. C. 633; Pike v. Irwin, 1 Sand. (N. T.) 14: Strohecker v. Cohen, 1 Spears (8. C), 349; Brown, Statute of Frauds, §§ 172-174. Agreement to pay one's own debt " to another" is not agreement to pay debt of another. Spadine v. Reed, 7 Bush (Ky.), 455; Besshears v. Rowe, 46 Mo. 501; see also Spalding v. Andrews, 48 Penn. St. 411. " Putney v. Famham, 27 Wis. 187; see § 570, note 1. 2 Pike V. Irwin, 1 Sand. (N. Y.) 14; Quin v. Hanford, 1 Hill (N. Y.), 82; Brown on Statute of Frauds, 174; see Towusley v. Sumrall, 2 Pet. 170. * Carville v. Crane, 5 Hill (N. Y.), 583; Taylor v. Drake, 4 Strobh. (So. Car.) 431. " See Brown on Statute of Frauds, § 175, note. 454 PKOMISES TO ACCEPT BILLS OF EXOHAKGE. undertake to accept a bill in consideration that another will purchase one already drawn, or to be thereafter drawn, and as an inducement to the purchaser to take it, and the bill is pur- chased upon the credit of such promise for a suflScient con- sideration, such promise to accept was binding upon the party, and that it was an original promise, and not a promise to pay the debt of another within the statute of frauds. In this case the suit was for damages for breach of the con- tract, and therefore it was not decided that such a promise constituted acceptance.' ' Townley v. Sumrall, 2 Pet. 170. Story, J., said: " This is not a caSe fall- ing within the object or mischiefs of the statute of frauds. If A. says to B. , pay so much money to C, and I will repay it to you, it is an original, independent promise; and if the money is paid on the faith of it, it has been always deemed an obligatory contract, even though it be by parol, because there is an original consideration moving between the immediate parties to the contract. Damage to the promisee constitutes as good a consideration as a benefit to the promisor. In cases not absolutely closed by authority, this court has already expressed a strong inclination not to e.xtend the operation of the statute of frauds so as to embrace original and distinct promises made by different persons at the same time upon the same general consideration. D'Wolf v. Rabaud, 1 Pet. 476. * * * The question whether a parol promise to accept a non-existing bill amounts to an acceptance of the bill when drawn, is quite a different question, and does not arise in this case. If the promise to accept were binding, the plaintiff would be entitled to recover, although it should not be deemed a virtual acceptance ; and the point, whether it was an acceptance or not, does not appear to have been made in the court below.'' CHAPTER XX. PRESENTMENT EOE PAYMENT. § 571. The engagement entered into by the acceptor of a ■bill and the maker of a note is, that it shall be paid at its maturity— that is, on the day that it falls due, and at the place specified for payment, if any place be designated — upon its presentment. This engagement is absolute, but that of the drawer of a bill and the indorser of a bill or note is conditional, and contingent upon the due presentment at maturity, and notice in case it is not paid. The maker and acceptor are bound, although the bill or note be not pre- sented on the day it falls due ; but the drawer and indorsers are discharged if such presentment be not made, unless some sufficient cause excuses the bolder for failure to perform that duty.^ It is important, therefore, to ascertain how the pre- sentment should be provided for by the bolder of the bill or note, lest by failure to observe the necessary precautions, the drawer and indorsers may be discharged, and the solvency of his debt destroyed or impaired. We shall consider, there- fore, in order : (1.) The person by whom the bill or note should be presented. (2.) The person to whom the bill or note should be presented. (3.) The time of presentment. (4.) Days of grace, and computation of time. (5.) The place of presentment. (6.) The mode of presentment. ' Chitty on Bills 13 Am. ed.) [*353], 395 ; Story on Notes, § 201 ; Bayley on Bills, ch. '!, § 1 ; Magruder v. Bank of Washington, 3 Pet. 93. 456 PKESENTJIENT FOK PAYMENT. SECTION I. BY WHOM PEESKNTMEHT FOE PAYMENT MUST BE MADE. § 572. Any bona fide Tiolder of a negotiable instrument, or any one lavvfally in possession of it for the purpose of re- ceiving payment, may present it for payment at maturity.^ A notary public, or any agent duly authorized, may make presentment of the instrument for payment ; and it is well settled that his authority need not be in writing.** § 573. The mere possessio7i of a negotiable instrument which is payable to the order of the payee, and is indorsed by him in blank, or of a negotiable instrument payable to bearer, is in itself sufficient evidence of his right to present it, and to demand payment thereof^ And payment to such person will always be valid, unless he is known to the payor to have acquired possession wrongfully. And if the party holding possession of a negotiable instrument which is not indorsed by the payee, or has been indorsed by him specially to another, and has not been indorsed over by such indorsee, but has been placed in the holder's hands as agent for the purpose of receiving payment, such agent may present it for payment, and payment to him will be valid ; even, as it has been held, although made in a manner different from that provided for in the instructions to the agent. The fact that the instrument is not indorsed by the owner is, as has been held, under such circumstances, of no importance. Such in- dorsement would be necessary to the negotiation of the in- strument, but it would not be necessary to the validity of the payment.* ' Lefty V. Mills, 4 T. E. 170; Bachellor v. Priest, 13 Pick. 399; Sussex Bank V. Baldwin, 3 Harrison, 487. ' Seaver v. Lincoln, 31 Pick. 367, in which case presentment was made by a sheriff; Shed v. Brett, 1 Pick. 40; Hartford Bank v. Barry, 17 Mass. 94; Free- man V. Boynton, 7 Mass. 483; Sussex Bank v. Baldwin, 3 Harrison, 487 ; Hart- ford Bank v. Stedman, 3 Conn. 489; Bank of Utica v. Smith, 18 Johns. 230; Williams v. Matthews, 18 Cow. 353. " Bachellor v. Priest, 13 Pick. 399 ; Cone v. Brown, 15 Rich. (S. C.) 362 (1868). ' See Doubleday v. Kress, 60 Barb. 195 (1871), and § 575. BY WHOM MADE. 457 § 574. When, however, a bill or note unindorsed by the payee, or indorsed by the payee specially, and unindorsed by the indorsee, is in the possession of another person, the ques- tion whether or not its bare possession is evidence of his right to demand payment, is of a different character. With- out the indorsement of the payee or special indorsee, such possession would clearly not entitle the holder to the privi- leges of a lona fide holder for value, as at best he would only hold the equitable title to the instrument,^ and could not sue at law upon it as a ground of action.^ But it might be contended (and we were at one time of the opinion) that such possession should be regarded as evidence of the holder's right to demand payment as the agent of the payee or special indorsee ; and that a payment to him would be valid, al- though he was in fact not authorized to receive it.^ But this we are now satisfied was a misconception of the law.* Cer- tainly if he were in fact the owner's agent, a payment to him would be valid, although he had produced no other evi- dence of the fact than the unindorsed instrument at the time whea he received it. But the payment without other evi- dence of ownership or agency would be at the payor's risk. Possession without the indorsement might have been acquired by fraud or theft, and alone could not constitute sufficient evidence of any right to the instrument whatever, being without transfer of title, or any collateral circumstance of a transfer in trust. Had the owner authorized the holder to act as his agent, an indorsement " for collection " in terms, an indorsement in blank, or a written authority to collect it, would be the natural and proper mode of communicating the fact. § 575. Mr. Chitty says that any person who happens, ' See Chapter XXII, on Transfer by Assignment; also Chapter XXIV, Sec. VI. = Hull V. Conover, 35 Ind. 372 (1871) ; Porter v. Cushman, 19 111. 572. ' See Southern Law Review for April, 1873, p. 273. * See anU, \ 573; Story on Agency, §98; Doubleday v. Kress, 50 N. Y. 413 (overruling same case in 60 Barb. 181), Peckham, J., saying: " Mere possession of the note by the assumed agent, Murray, unindorsed, without any other sus- taining facts, is not sufficient to authorize payment to him. " 458 PRESENTMENT FOR PAYMENT. whether by accident or otherwise (as by the failure of an agent), to be the holder at the time the bill or note becomes due, and although he has no right to require payment for his own benefit, may and ought to demand payment, and give notice of non-payment so as to prevent loss.^ Doubtless the act of such unauthorized person would be sufficient to prevent loss, as the owner's ratification of it would be presumed ; but it is not probable that the learned author intended to intimate the opinion that a payment to him would be valid unless ratified, or that his mere posses- sion of the instrument, unless it was payable to bearer or indorsed in blank, was in itself evidence of a right to act as or for the owner. The doctrine of the text is sustained by high authority ; * and since the foregoing was written has been judicially established in New York,^ and found favor in Ohio.* If the holder have, and exhibit extraneous evi- dence of his ownership of the instrument, such, for instance, as an assignment and mortgage duly executed, this will suf- fice without indorsement, and the party to whom it is pre- sented would then have no right to insist on an indorsement.' § 576. Presentment hy indorser. — Whether or not an indorser of a bill or jiote which has upon it a subsequent special indorsement, and no prior indorsement in blank, is shown by mere possession of the paper to be entitled to demand payment, has been much questioned. There are a ' Chitty on Bills (13 Am. ed.) p365], 410; see also [*394], 445. In a very early case it is said : " If a wrong person do show the bill, by the custom of mer- chants this is a good payment." Anonymous, Styles, 366 (1653); Edwards on Bills, 494. 2 Thomson on Bills, 245; Pothier, 168. ' Wardrop v. Dunlop, 1 Hun (8 N. Y. S. C. R.), 335 (1874) ; Doubleday v. Kress, 50 N. Y. 410 (1872). * Dodge V. National Exchange Bank, 30 Ohio St. 1. ■■ Pease v. Warren, 25 Mich. 9 (1874). The bank denied the right of the holder to insist on payment without proving the payee's indorsement. Cooley, .1., said : " The indorsement would have been necessary to enable him (the holder) to sue at law on the notes in his own name, but if he was the real owner he was entitled to demand and receive payment whether they were indorsed or not, and the formal assignment, duly acknowledged and recorded, was the best possible proof of ownership.-'. BY WHOM MABB. 459 number of cases which hold that such an indorser cannot demand payment, for the reason that it would seem from the face of the paper itself that he had parted with his title ; and that a receipt from the last indorsee, or a re-indorsement to him would be necessary to re-establish it. This doctrine was laid down in an early case by the Supreme Court of the United States,^ and some of the State tribunals have taken the same view;^ but in a more recent case the Supreme Court of the United States expressed the opposite opinion, which seems to us the correct one.^ Some of the cases hold that possession of the bill by a prior indorser is sufficient where the subsequent indorsements are canceled ; * but the better view seems to be, and it is sustained by most respect- able authority, that it makes no difference that the subse- quent indorsements remain uncanceled.'' The party may not be still the proprietor in interest of the instrument, but his possession of it would be prima faeie evidence that he had paid it himself to a subsequent indorsee, and had re-acquired the right to demand payment. And it would also be con- sistent with the idea that he was holding it and suing for the benefit of a subsequent indorsee.* § 577. It is intimated by Story that a different rule • Welch V. Lindo, 7 Cranch S. 0. 159. " Thompson v. Flower, 13 Mart. (La.) 301, where it was held that the last indorsement being canceled was insuiEcient; see also Sprigg t. Cuny, 19 lb. 253. In Dehers v. Harriott, 1 Show. 163, it was held that a bill payable to A., and indorsed by him to B., and by B. to C, might be sued on by B., it appearing, however, that C. had no interest. And in Mendez v. Carreroon, I Ld. Raym. 743, the prior indorser suing the acceptor was non-suited, it appearing that he had been sued by a subsequent indorser, and not appearing that he had paid the bill. ' Dugan V. United States, 3 Wheat. 172 (1818) ; see Domingo Franca v. , 12 Mod. 3i5 (1699). • Bank of Utica v. Smith, 18 Johns. 230; Bowie v. Duyall, 1 Gill. & J. 175; Chautauqua Co. Bank v. Davis, 31 Wend. 584 ; Dollfus v. Frosch, 1 Denio, 307 ; Brinkley v. Going, Breese, 288 ; Kyle v. Thompson, 2 Scam. 432. " Dugan V. United States, 3 Wheat. 172; Lonsdale v. Brown, 3 Wash. C. C. 404 ; Picquet v. Curtis, 1 Sum. 478 ; Norris v. Badger, 6 Cow. 449. ■ See Batchellor v. Priest, 12 Pick. 399; Bank U. S. v. U. S. 3 How. 711; Jones V. Fort, 9 B. & C. 764 ; Merz v. Kaiser, 20 La. Ann. 377. 4G0 TRBSENTMENT FOE PAYMENT. might apply where the note was not originally negotiable to order, or, if negotiable, had been indorsed restrictively to a particular person only ; and where, of course, in either case, the holder in possession is not the payee or the special indorsee thereof. Under such circumstances he considers the mere production of the note is not ordinarily deemed a suf- ficient title or authority to demand payment.^ This is not in accordance with the views of Chitty, or the i^atio de- cidendi of cases already quoted ; for while title to the in- strument cannot pass without the indorsement, the posses- sion, it has been thought, may still be evidence of agency to demand payment. For reasons already stated, we think the views of Story are correct.^ § 578. WJien liolder is dead. — If the holder die before the time for presentment for payment, it must be made by his personal representative.^ If there be no personal repre- sentative at the time, presentment and demand within a rea- sonable time after his appointment will be sufficient to charge subsequent parties, although presentment and de- mand were not made at maturity.* If the holder's estate has passed to an assignee in bank- ruptcy, the assignee, or some person authorized by him, should make presentment.^ If the holder is a feme sole, and she has become a married woman at maturity, the presentment should be made by her husband ; and a presentment by her, without his consent or authority, would be insufficient to charge the maker, or vali- date a payment. If the note belonged to a partnership, and one member be dead at maturity, presentment should be made by the survivor. § 579. Whether or not demand of payment of a foreign hill hy a notarfs derh is sufficient as ground of protest. — ' story on Notes, § 247. •" See ante, \\ 574, 575. = 1 Parsons N. & B. 360; Story on Prom. Notes, § 349. * White V. Stoddard, 11 Gray, 528. ' 1 Parsons N. & B. 360; Ed^vard3 on Bills, 404 BY WHOM MADE. 401 There is no doubt, as we have already seen, that any person, whether he be a notary or not, having a bill or note in pos- session, and whether the bill be foreign or inland, may de- mand payment and receive the amount due ; and that a pay- ment to such person by the drawee will discharge his obliga- tion. But in respect to foreign bills which are dishonored by refusal of acceptance or payment, the liability of the drawer and indorsers can only be preserved by a protest and no- tice — notice alone being necessary in the case of inland bills. And the custom is, when a foreign bill is dishonored, to cause it to be placed in the hands of a' notary public, and again presented on the same day, if indeed it were not pre- sented by a notary in the first instance, and to be protested by him for non-acceptance or payment, as the case may be.^ The question has been much debated whether or not a pre- sentment by a notary's clerk will suffice as the foundation of such protest, and the authorities are at war upon it. § 580. English Authorities,— In Leftly v. Mills,^ BuUer, J., said : " I am not satisfied that it was a proper demand, for it was only made by the banker's clerk. The demand of a foreign bill must be made by a notary public, because he is a public officer." This dictum led Mr. Chitty, in an early edition of his work, to give apparent approval of the doctrine that the notary in person must make the demand. A corre- spondence then ensued between him and the notaries of Lon- don, the latter insisting " not only that by mercantile usage such presentment is regular (by a notary's clerk), and is almost invariably adopted, but that as far back as the memo- ry of the oldest notary here can extend, it has always been the custom so to present them." And further, that commer- cial business must instantly come to a stand if a dififerent rule prevailed ; " because it would be just as impossible for all the bills in this country to be presented in person by notaries as by bankers." In reply, Mr. Chitty insisted, after careful con- ' Brooks' Notary, 3d cd. 71 (1867). ' 4 Term R. 170 (1791). 462 PRESENTMENT FOR PAYMENT. sideration, that " it was clear, that strictly the notary himself must in all cases make demand of payment l^efore he pro- tests ; " ^ though he obser\res elsewhere in his work, that " the number of bills requiring pi-esentment is frequently so great as to render a presentment by the notary himself impossible ; and the constant practice is for the clerk to make the pre- sentment." ^ And in a recent edition, it is said in a note by the learned editor, that the practice to allow the notary's clerk to make the demand, " is amply justified by the law of prin- cipal and agent, and not questioned in any case which has occurred before the courts of England." ^ Professor Parsons quotes this language with seeming approbation,* and there are considerations which go far to show that at common law demand by the notary's clerk is sufficient. In Scotland it is considered sufficient,'' and sufficiency of such demand, it has been said, is implied from a case in the Common Pleas,^ but it seems that in that case the bill was not foreign. And in another English case,' reported more fully in Chitty on Bills ^ than by the reporters, and cited in New York,^ it would seem that Boiler's, J. dictum is considered the law of the realm. It appeared that the notary's clerk presented a foreign bill, drawn in Jamaica on London, and afterward drew up the certificate of jorotest, which was signed and sealed by the notary himself, in due form. It is stated in Chitty, though not by the reporters, that Lord Ten- terden, C. J., said it was a void protest — that it was a false certificate — that the notary had signed a paper stating "I presented and demanded," v/hen it appeared in evidence that only his clerk had presented the bill, and he himself knew nothing of it. And the predominant view is that in En- gland the demand should be made by the notary in person. ' Cbitty on Bills (13th Am. ed.) [*490], 519. " Chitty on Bills (13th Am. ed.) [*333], 374. = Chitty on Bills (10th Eng. ed.) 355, note 4. * 1 Parsons N. & B. 360. ' Thomson on Bills (Wilson's ed.) 311. " Poole V. Dicas, 1 Bing. N. C. 649 (1835) ; see 1 Parsons N. & B. 641. ' Vandewall v. Tyrrell, 1 Mood. & Malk. 87 (22 E. C. L. E.) 358. * Chitty on Bills (8th Lond. ed.) p. 495, note; 13th Am ed. 519, note. ' Onondaga County Bank v. Bates, 3 Hill, 57. BY WHOM MADE. 463 § 581, State of the autJiorities in the United States. — If it WQVQ a question of original impression we should strongly favor the admissibility of demand by a notary's clerk ; and upon principle we cannot perceive any sufficient reason why it should not be allowed. In point of fact, the custom is al- most universal for the demand to be made by the clerk, and whenever such custom is proved as existing in a particular place, it is recognized as controlling. When the demand is made by the clerk, the responsibility of the notary is never- theless as binding, as the clerk is merely his agent ; and every consideration of convenience would seem to sustain the prac- tice. But in the United States the courts have, almost without dissent, held that at common law it is necessary that the notary himself should make the demand of a foreign bill ; and that in order to establish the suflBciency of a demand by his clerk, a general custom, or a statutory enactment author- izing such practice, must be proved.^ In a recent case decided in Missouri,^ in an action upon a foreign bill drawn in St. Louis on New York, and in its sequel decided in New York ^ in an action against the notary for negligence in not protesting it duly, the necessity of de- mand by the notary in person was illustrated in the most positive form. In the first case (Commercial Bank v. Barksdale), it ap- peared that the bill was protested in New York city on the 5th of January, 1861; that paymerit was demanded by Tur- ney, a notary ; that the protest was made out by Varnum, ' Sacrider v. Brown, 3 McLean, 481 (1844); Ocean National Bank v. Williams, 103 Mass, 143; Cribbs v. Adams, 13 Gray, 597; Chenowith v. Chamberlin, 6 B. Mon. 60 (1845) ; Bank of Kentucky v. Carey, 6 B. Mon. 639 (1846) ; McClane, V. Fitcli, 4 B. Mon. 600 (1844); Carter v. Brown, 7 Humph. 548; Commercial Bank v. Barksdale, 36 Mo. 563 (1865) ; Wittenberger v. Spalding, 33 Mo. 431 ; Commercial Bank v. Varnum, 3 Lans. 86 (1870) ; is overruled in 49 N. Y. 275 (1872); Burch v. Hill, 34 Tex. 153; Locke v. Huling, 24 Tex. 311; Donegan V. Wood, 49 Ala. 243. ^ Commercial Bank t. Barksdale, 36 Mo. 563 (1865.) ' Commercial Bank v. Varnum, 49 N. Y. 275 (1873) ; overruling same case in 3 Lans. 86. 464 PKESHXTMBNT TOR PAYMENT. also a notary, who was a copartner with Turney in the notarial business. Holmes, J., delivering the opinion, said: "It is well established that the presentment and demand must be made by the same notary who protests the bill ; it cannot be done by a clerk, or by any other person as his agent, thougli he be also a notary. The protest is to be evidence of the facts stated in it, of which the notary is suj)posed to have personal knowledge, and credit is given to his official statements by the commercial world on the faith of his pub- lic and official character." ^ In court, the instrument speaks as a witness. Such state- ments made merely upon the information of another person would amount to hearsay only, if the notary were himself upon the stand as a witness. • "The notarial protest must state facts known to the person who makes it, and he cannot delegate his oiBcial character or his functions to another. The presentment and protest are governed by the law of the place where the bill is payable ; and on this principle it has been held that where the statute law of the State (as in Louisiana), authorizes notaries to appoint deputies, a protest made by such deputy, duly appointed, would be recognized as sufficient. Carter v. Brown, 7 Humph. 548. But no case seems to have gone further than this: Such deputy may be considered as having a semi-official character, and sufficient authority by force of the statute; but without some change in the general rule of law, one notary can neither delegate his functions nor impart his own official character to another. Here, two notaries were in partnership in general business, and one of them undertook to present the bill and make the demand, and the other to draw up the protest and give the notice. They were both notaries, but as such they were distinct puljlic officers, and there can be no partnership in such matters. No law or custom was proved to Jiave existed in the State or city of New York, which changes the general rule of the law merchant on this subject. It must follow that the protest made by Varnum can have no validity; nor will that made by Turuey any more avail. It seems to be clearly established by the gen- eral current of authority that the protest must be made on the same day with the presentment and demand, though a noting of the protest on the bill itself may be regarded as an incipient protest, or preliminary step toward a protest which may he completed afterward, at any time, by drawing up the protest in form. Here there was no noting of the bill for protest, or any memorandum marked on the bill by Turney ; nor is there any proof of any distinct note, entry or memo- randum of protest made by him on that day, in any other way than upon the bill itself. It would appear that he did not make the demand for the purpose of protesting the bill himself, but as the agent of his partner, the other notary. He neither protested the bill nor noted it for protest at the time; and his drawing up of a protest, long afterward must be regarded as having no basis of con- temporaneous fact or present authority, and as being entirely void." BY "WHOM MADE. 465 § 5 82. In the case in New York, the Commercial Bank sued the notary, Varnum, into whose hands the bill was placed for demand, and protest if necessary, for negligence in not duly performing his function. And it appeared that he gave the bill to his partner, Turney, who presented it for payment ; and on the same day an entry was made in Var- num's protest book under the joint supervision of Turney and himself, stating that the bill was presented and protested by Varnum. This was signed by Varnum. Turney's name not being mentioned, but his initials were placed opposite. It was held that by the common law the defendant would be liable, but that evidence of a general custom would be ad- missible to show that in New York the practice for a notary's clerk to make the demand was recognized.^ To the same effect are numerous cases,** and we know of ' Commercial Bank v. Varnum, 49 N. Y. 275 (1872), overruling same case in 3 Lans. 80 (1870), Peokbam, J. saying: "Conceding the rule at common law to be, in the absence of any custom or usage on the subject, that the presentment and demand must be made by the notary in person, was the testimony offered, of the universal usage in the city of New York for the clerk of the notary to make such presentment and demand admissible ? " It may be remarked that the usage of merchants has established the great body of the law in reference to bills of exchange. " It gave grace to such bills, and this changed the contract. It has settled the particular time of demand by the notary. The rule of law that requires a protest of a foreign bill is wholly founded upon the custom of merchants. Dennistoun v. Stewart, 17 How. 606. " In the absence of any established rule of law in this State, by decision of the court or by any statute requiring a demand to be made by the notary in person, it is not perceived why a usage such as was approved was not admissible as proof upon the subject. This was the view of the learned justice who tried this case, but he was of opinion that the law had been otherwise settled in this State. In this, I think, he was clearly in error. All the decisions refeiTed to by him or upon the argument at bar were confined to the admissibility of certificates of protest, and notice of bills, and notes under the statute of 1833, p. 395. That statute made no provision as to what constituted a protest, but provided simply what the notary's certificate should prima facie prove, and had no reference what- ever to the admissibility of this offered evidence, or to the duties of notaries at common law in protesting a foreign bill." = Chenowith v. Chamberlin, 6 B. Mon. 60 (1845); Ellis' Adm'r v. Com- mercial Bank, 7 How. (Miss.) 294 (1343) ; Sacrider v. Brown, 3 McLean, 381 (1844). Vol. I.— 30 466 PEBSENTMBNT EOR PAYMENT. no case in the United States in which a contrary doctrine has been distinctly held ; so that however weighty may seem the considerations which uphold a contrary view, in this country the principle may be regarded as settled. § 583. Distinction taksn. in Kentucky letiueen clerk and deputy. — In Kentucky a distinction exists between the infer- ences to be drawn from a demand by the notary's clerk and by his deputy, which seems to us too refining, and not to be sustained. There it was held that proof of a general custom for the notary's clerk to make demand prevailing in New Orleans was admissible, and proof of presentment by the clerk sufficient.^ In a subsequent case, where the present- ment was also made in New Orleans by a notary's clerk, it was held insufficient as foundation for the protest, because no evidence of the custom authorizing it apjDcared in the record.^ These two decisions were doubtless correct ; but in a still later case it was held that where the notary certified respecting a foreign bill that he " presented the bill for pay- ment by his deputy Auguste Commandeur," it was sufficient, although there was no evidence that by the laws of Louisiana a deputy was authorized to perform such functions. The court held that official authority or authority of the principal might be implied in the deputy, when no such authority would be implied in a mere clerk. And while it could find no authority, as was observed, for presentation by a deputy, it considered that the impracticability of the notary acting in person in a great commercial city, in all cases, and the seeming necessity for authorizing action by deputy, furnished prima facie presumption that the presentation and protest were made in accordance with the law or usage of New Or- leans.'' This decision is directly controverted by the cases in Mis- souri and New York, before cited, and seems to us objection- able, on the double ground that the notary who makes the ' McClane t. Fitch, 4 B. Mon. 600 (1844). = Clienowith v. Chamberlin, 5 B. Mon. 60 (1845). = Bank of Kentucky v. Gary, 6 B. Mon. 629 (1846). BY WHOM MADE. 467 presentment must also make the protest, and that departifres from the common law, whether by statute or custom, must be proved. Indeed, the courts of Kentucky could take no judicial notice of a statute of Louisiana, which must be placed before them in evidence in authentic form before it can be noticed. § 584. The rule applies to protests of inland hills and promissory notes when protest of siich instruments is allow- able. — The rule requiring the demand and protest to be made by the notary in person applies, in order to give it full force and effect, although the instrument protested may be an inland bill or a promissory note. As to them, no pro- test is necessary, but by statute in many of the States it may be made, and be accorded the same effect as in the case of a foreign bill. But in such cases, in order to possess the same effect, it must be made by the same person, and based upon the same preliminary notarial demand, as in the case of a foreign bill. For quoad the form and effect of the pro- test they are placed on the same footing as foreign bills. Thus, in New York, where the pi^otest certified that the no- tary caused the note to be presented, it was held insufficient, because he could not delegate his functions to another ; and that indeed such certificate would be objectionable as evi- dence of presentment, because the notary had no personal or official knowledge of the fact, and it was but hearsay evidence at most.^ So it was held that certificate of the notary that the note was presented by his clerk would be defective on like grounds.^ § 585. But it is to be observed respecting inland bills and promissory notes that as no protest is necessary, and although no protest when relied on will be valid unless made by the notary in person, yet demand of payment of an inland bill or of a promissory note may be made by the clerk, which will be sufficient as the foundation of notice from the notary, > Onondaga County Bank v. Bates, 3 Hill, 56 (184'2). " Sheldon v. Benham, 4 Hill, 129 (1843) ; to same effect, Warnick v. Crane, 4 Denio, 460 (1847); Gawtry t. Doane, 51 N. Y. 90 (1872). 468 PKESENTMENT EOK PAYMENT. or other person acting for the holder. But the testimony of the clerk would be necessary to show the due presentment, and the testimony of the notary or other party acting for the holder to show due transmission or service of the notice.^ § 586. Statutory authority or general cxistom may he proved. — ^It is clear upon principle, and it is agreed by the authorities, that where there is a statute authorizing the de- mand or protest to be made by a notary's deputy or clerk, or by any other official, or where there is a general custom recog- nizing such practice, it maybe proved, and that in such cases it will be sufficient to show that the statute or custom was observed. Thus, it has been held by the United States Su- preme Court that where, as in Mississippi (as was proved), a justice of the peace is authorized by statute to perform the functions and duties of a notary, his act of protest is equally valid as that of a notary. '■^ Quoad hoc,^'' said the court, "he acts as a notary." ^ And so, where it was in evidence that, by the laws of Louisiana, each notary was authorized to ap- point one or more deputies to assist him in making protests and delivering notices, and the protest on its face stated that the notary A., by his deputy B., presented the bill, etc., it was held sufficient.^ So, it has been held in a number of cases, that evidence of a custom for a notary to act by his clerk is admissible,^ and in Massachusetts the doctrine was well expressed by Bigelow, J.^ ' Hunt V. Maybee, 3 Seld. 269 (1832). " Burte V. McKay, 2 How. 66 (1844). = Carter v. Union Bank, 7 Humph. 548 (1847). * Commercial Bank v. Varnum, 49 N. Y. 275 (1872), oyerruling s. c. 3 Lans. 86 (1870) ; Commercial Bank v. Barksdale, 36 Mo. 563 ; Willenberger v. Spald- ing, 88 Mo. 421 ; Nelson t. Fotteral, 7 Leigh, 179. See ante, § 582, note. ' In Cribbs v. Adams, 13 Gray, 600, Bigelow, J., said: " By the common law, as we understand it, and according to the uniform practice in the common- wealtli, the duties of a notary must be performed personally, and not by a clerk or deputy. He is a sworn officer, clothed with important public duties, which in their nature imply a public confidence and trust. Doubtless, by well settled usage in some places, and in others by express provision of statute, notaries are authorized to employ clerks or deputies to perform offlcial acts coming within BY WHOM MADE. 469 In Virginia, the Court of Appeals was unanimous as to this doctrine, tut divided equally as to whether or not, at common law, presentment by the notary's clerk was suf- ficient.^ It is quite clear that in no case can the clerk make the protest, however it may be determined as to the presentment and demand.^ § 587. Custom fornotavif s clerh to make presentment Tnust he shown to relate to foreign Mils. — There may be a custom for notaries' clerks to make presentment as foundation of protest of inland bills and of promissory notes, and yet it may not extend to include foreign bills. And when a protest of a foreign bill has been based on presentment by a notary's clerk, the plaintiff must not only show a general custom or practice for the clerk to make present- ment of bills and notes, but must show distinctly that the custom extended to foreign bills. As said in a recent case in Massachusetts, by Ames, J. : * " The plaintiff wholly failed to prove the the existence of any well settled local usage in New York that would authorize a notary in the case of a foreign bill to make a presentment and demand of payment by his clerk or deputy, and to certify and authenti- cate notarial acts so performed, in the same manner as if he had performed them himself The witnesses who testify that it is customary in the city of New York for the clerks of notaries to present and demand payment of drafts, and for notaries to protest upon such presentment and demand, wholly fail to give any information upon the point whether the sphere of their duty, and are employed to certify and authenticate their acts by their own notarial certificates in like manner as it such acts had been per- formed by themselves personally. But such usage or provision of law is a fact to be proved by evidence. At the trial of this case the plaintiff offered no evi- dence that a notary in Louisiana (where the bill was protested) was authorized, either by usage or statute, to employ a deputy, or to authenticate his acts by his own certificate." ' Nelson v. Fotteral, 7 Leigh, 180. ' Sacrider v. Brown, 3 McLean, 481 (1844). ■ " Ocean National Bank v. Williams, 103 Mass. 143. 470 PKESBNTMENT FOK PAYMENT. that custom applies to and includes the case of foreign bills. One of them says that his attention had never been called to that distinction, and the other makes no allusion to it. It hardly need be said that a local usage, in derogation of the general rules of law, requires clearer and better evidence of its existence and validity." In Pennsylvania, where a promissory note was dishon- ored, and the plaintiff offered in evidence the certificate of a notary, by which it was certified that the notary had given the indorser notice of non-payment ; but the notary, on the trial, testified that the certificate was in the handwriting of his son, then absent in the West Indies ; that his son had attended to the presentment and notice, and he himself had no personal knowledge on the subject. This testimony was not objected to, and it was held that, under the peculiar cir- cumstances of the case, and the Pennsylvania statute making notarial certificates competent evidence, that the certificate was admissible as matter of evidence, to be weighed with the rest of the testimony by the jury.^ SECTION II. TO WHOM PKESENTMENT FOE PAYMENT MUST BE MADE. § 588. Presentment for payment must be made to the drawee or acceptor of the bill, or maker of the note, or to an authorized agent. A personal demand is not necessary, and it is sufficient to make the demand at his usual residence or place of business, of his wife or other agent ; for it is the duty of an acceptor or promisor, if he is not present himself, to leave provision for the payment of his bills or notes.^ There is no doubt that a clerk found at the counting room of the acceptor or promisor is a competent party for present- ment for payment to be made to, without showing any special authority given him.^ But where the protest stated ' Stewart v. Allison, 6 Serg. & E. 334. = Mathews v. Haydon, 3 Esp. 509; Brown v. McDermott, 5 Esp. 265. ' Stainback v. Bank of Virginia, 11 Grat. 260 ; Nelson v. Fotterall, 7 Leigh, TO WHOM MABB. 471 the mere fact of presentment " at the office of the mater," it will be considered insufficient, as not showing that the paper was presented to party at the office authorized to pay or re- fuse payment.^ A demand upon the servant of the owner " who used to pay money for him," was held sufficient in England.^ § 589. It has been indicated by Chitty, in his work on Bills,* that while in making presentment for acceptance the holder should, if possible, see the drawee personally, in the presentment for payment it is not necessary, it being sufficient- if it be made at the house of the acceptor. But we concur with Story,* that there is no just foundation for the distinc- tion. If, indeed, the drawee does not happen to be present when the call is made at his house or counting room to pre- sent the bill for acceptance, the holder, it seems, is not bound to consider it as a refusal to accept, but may wait a reasona- ble time for the return of the drawee who has as yet incurred no obligation respecting the bill, and may indeed be ignorant of its existence. The holder may even wait until the next day to renew his call to present for acceptance.^ But no such delay is allowable in making presentment to the acceptor for payment. It is the duty of the acceptor, who is the principal debtor, to provide for the payment of the bill ; and if he is not in himself, and there is no one present to answer for him, when the holder calls at his house or counting room, the bill should be treated as dishonored, and protested for nonpay- ment. § 590. If presentment be made at the place specified in the instrument, or in the case of one payable generally at the 180 ; Draper v. Clemons, 4 Mo. 53 ; Stewart y. Eden, 3 Caines, 131 ; Reynolds v. Chettle, 2 Camp. 596. '■ Nave V. Richardson, 36 Mo. 130. = Bank of England v. Newman, 12 Mod. 241 ; s. c. 1 Lord Raym. 443. = Chitty on Bills (13th Am. ed.) [*366], 413. * Story on Bills (Bennett's ed.), § 350. ' Ibid.; Bank of Washington v. Triplett, 1 Pet. 25; Mitchell v. De Grand, 1 Mason, 176. 472 PRESENTMENT FOR PAYMENT. place of business of the acceptor or maker during business hours, or at his domicile during a reasonable hour of the day, it is suiEcient if it be made to any person to be found upon the premises, especially if the maker be absent or inaccessible.^ Where presentment was made to the wife of the maker, she informing the holder that her husband was out of town, it was held sufficient.^ And so it was deemed sufficient to charge the indorser where the holder presented the bill to an inmate of the maker's house, who was coming out, and who stated that the acceptor had removed — the holder leaving a card containing notice for the acceptor of the maturity of the bilP Where there is no one to answer, presentment at the maker's dwelling is sufficient.* The general rule as to the pi'esentment and demand of commercial paper may be stated as follows : The present- ment and demand must be made within reasonable hours on the day of matui'ity. For the purpose of fixing the liability of indorsers, the note or bill is payable on demand at any time during those hours. What are reasonable hours will depend upon the cpiestion whether or not the note or bill is payable at a place or bank, where, by the established usage of trade, business transactions are limited to certain stated hours. If there are such stated hours where the note or bill is payable, the presentment and demand must be made within those hours ; but if there are no stated hours, and no place of payment is designated in the note or bill, the present- ment and demand may be made either at the place of business or residence of the maker or acceptor ; if at his place of busi- ness, it must be within the usual business hours of the city or town ; if at his residence, then within those hours when the maker or acceptor may be presumed to be in a condition to attend to business.*' ' Cromwell v. Hynson, 3 Camp. 596; Phillips v. Astberg, 3 Taunt. 206; Draper v. demons, 4 Mo. 53. " Moodie v. Morrall, 1 Const. R. 367. ' Buxton V. Jones, 1 Man. & G. 83 ; 1 Scott N. R. 19 ; Story on Bills (Ben- nett's ed.), § 350, note, 1. ' Stivers v. Prentice, 3 B. Men. 461. " McFarland v.' Pico, 8 Cal. 601. TO VHOM MADE. 473 § 591. When acceptor or maker is dead. — If the acceptor or maker be dead at the time of the maturity of the bill or note, it should be presented to his personal representative, if one be appointed, and his place of residence can, by reasona- ble inquiries, be ascertained.^ If there be no personal repre- sentative, then presentment should be made, and payment demanded, at the dwelling-house of the deceased, if the in- strument were payable generally.^ But if it was drawn payable at a particular place, then it will be sufficient that it was presented at such, place.* § 592. In part7iersMp cases. — Presentment of a bill drawn upon or accepted by, and of a note executed by, a copartner- ship firm, is sufficient, if made to any one of the members of such firm.* And if the signature of the parties entitled to presentment be apparently that of a partnership, as, for in- stance, if signed "Waller & Burr," presentment to either is sufficient.^ Even after the dissolution of the firm, presentment to any one of the partners is sufficient, for as to the bill or note upon which they are liable, the liability continues until duly satisfied or discharged.® As said in Maryland, where present- ment of a partnership note was made to one of the firm after dissolution, by Archer, C. J. : '' " It might be sufficient to say that this dissolution had, by no evidence in the case, been brought home to the knowledge of the holder of the note. ' Gower v. Moore, 25 Me. 16 ; Price v. Young, 1 Nott & McC. 438 ; Story on Notes, §§ 241-253; Magruder v. Union Bank, 3 Pet. 87; Juniata Bank v. Hale, 16 Serg. & R. 167. ' Ibid. ; Story on Notes, § 353 ; Story on Bills, § 346 ; see Chapter XVII, § 458. ° Boyd's, Adm'r v. City Savings Bank, 15 Qrat. 501 ; Price v. Young, 1 Nott & McC. 438'; Philpot v. Bryant, 1 Moore & P. 754 ; 3 Carr. & P. 244 ; 4 Bing. 717 ; Holtz V. Boppe, 37 N. Y. 634 ; Thomson on Bills (Wilson's ed.), 285. See ante, § 455. * Branch of State Bank v. McLeran, 26 Iowa, 306 ; Shed v. Brett, 1 Pick. 401, Thomson on Bills (Wilson's ed.), 381. ' Erwin v. Downs, 15 N. Y. (1 Smith), 375. " Crowley V. Barry, 4 Gill, 194; Fourth Nat. Bank v. Heuschuk, 52 Mo. 307; Hubbard v. Matthews, 54 N. Y. 50; Brown y. Turner, 15 Ala. N. S. 633; Coster V. Thomason, 19 Ala. N. S. 717. ' Crowley v. Barry, 4 Gill, 194. 474 PRESENTMENT FOE PAYMENT. But we do not desire to determine the question on this ground, because we are clearly of opinion that a demand on one of the partners was sufficient, as each partner represents the partnership. Before a dissolution, it clearly would not be necessary to make a demand on both, nor could it be nec- essary after a dissolution, for the partnership as to all ante- cedent transactions continues until they are closed." And it has been held that demand on the agent of one partner, after dissolution, in the absence of the other part- ner, was sufficient.^ § 593. In the event of the death of one of the members of the firm to which presentment should be made before the maturity of the bill or note, the presentment should be made to the survivors, and not to the personal representative of the deceased, because the liability devolves upon the surviv- ing partner.* § 594. Whe?'e there are several promisors not partners. — When the note is executed by several joint promisors who are not partners, but liable only as joint promisors, it has been held, and, as we think, coiTectly, that presentment should be made to each, in order to fix the liability of an in- dorser.^ But a difficulty presents itself which might seem to characterize this doctrine as harsh and unreasonable, and which has caused it to be held that quoad hoc the promisors are to be regarded as partners, and presentment to one equiv- alent to presentment to all. "Now, suppose," it has been said, in Ohio, by Hitchcock, J.,* "the makers resided in differ- ' Brown v. Turner, 15 Ala. 833. " Cayuga County Bank v. Hunt, 3 Hill, 635 ; Story on Bills, §§ 34C-363; 1 Parsons, N. & B. 362. = Blake v. McMillen, 23 Iowa, 258; s. c. 33 Iowa, 150 (1871); Union Bank v. Willis, 8 Mete. 504; Arnold v. Dresser, 8 Allen, 435. Nelson, J. C, in Willis v. Green, 5 Mete. 232, a case respecting notice to joint indorsers, says: "I do not see but the case of joint indorsers, not partners, stands on the same footing as that of joint makers of a note who are not partners; and in respect to them, it is settled that presentment must be made to each, in order to charge an indorser.'' See also ante, § 455, and Gates v. Beecker, 60 N. Y. 533. * Harris v. Clark, 10 Ohio, 5. TO WHOM MADE. 475 ent States, or in different and distant parts of the same State, how could demand be made of all in order to charge an in- dorser ? It must be made on the day the note falls due, or, where days of grace are allowed, on the last day of grace. Will it be said that the demand can be made at different and distant places on the same day, through the agency of letters of attorney ? I believe such a practice has not been heard of, at least we have found nothing like it in the books." And the court concluded that they were to be regarded as partners. § 595. These views are more plausible than satisfactory, and the argument ab inconvenienti is well presented. But joint promisors are no more partners than joint indorsers. To construe them to be partners is to make a new contract between them, and to vary the condition precedent of the in- dorser's liability. And although it might be more convenient if they were partners, the inconvenience in enforcing their contract does not change it. If they were in different places at the maturity of the note, and it could be only presented to one, due diligence would only require its presentment to the others in such time as they could be reached ; and the Impossibility of pre- senting to all on the day of maturity, would excuse non- presentment to those at other places. Such, at least, is our conception of the true solution of the question, and it is borne out by high authority, and certainly by much more satisfactory reasoning than that above quoted.^ § 596. Where the note is several as well as joint, the in- dorser might be held as indorser of the maker to whom the note was duly presented, as the holder would have the right to treat the note as the several note of each maker. But he would have lost recourse against the indorser as u2:ion the joint note of the co-makers, or the several note of the maker, as to whom no presentment was made or excuse given.^ ' See 1 Parsons N. & B. 363, note w; Story on Notes, § 239, and especially §■255, and note 2. There seems to be no English precedent on the question. ' Story on Promissory Notes, § 255, note 2. 476 PRESENTMENT FOE PAYMENT. In the event of the death of a joint maker, present- ment should be made to the survivor, upon whom the debt devolves. If the note were several also, it migbt be differ- ent, as the holder is at liberty to elect " upon whom he will make demand." ^ SECTION III. TIME OF PRESENTMENT FOE PAYMENT. § 597. Upon loJiat day presentment should he made. — In respect to the maker of a note and the acceptor of a bill, it is not important upon what day the presentment is made, provided it be made at some time before the statute of limi- tations bars action against them.* And provided, also, that the note is not made, nor the bill drawn or accepted, payable at a certain place. In such cases only is it desirable that, as respects the maker or acceptor, the bill or note should be presented on the exact day of its maturity ; and even in such cases it makes no difference that the presentment was not punctually made on that very day, unless the maker or ac- ceptor should suffer some loss or damage by the delay. § 598. In respect, however, to the drawer of a bill and the indorser of a bill or note, it is essential to the fixing of their liability that the presentment should be made on the day of maturity, provided it is within the power of the holder to make it.^ If the presentment be made before the bill or note is due, it is entirely premature and nugatory, and, so far as it affects the drawer or indorser, a perfect nullity.^ And if it be made after the day of maturity, it can, as matter of course, be of no effect, as the drawer or indorser will already have been discharged, unless there were sufficient legal excuse for the delay.^ The evidence must be distinct as ' Story on Promissory Notes, § 256. = Chitty on Bills (13tli Am. ed.) [*3r)4], 396. = 1 Parsons N. & B. 373. * Griffin T. Goff, 13 Johns. 433; Jaclsson v. Newton, 8 Watts, 401; Farmers' Bank v. Duvall, 7 Gill & J. 78 ; Mechanics' Bank v. Merchants' Bank, 6 Mete. 13. ' Windham Bank v. Norton, 33 Conn. 313. TIME OP. 477 to the promptness of the presentment or the excuse for delay.^ § 599. 7f a note he payable in installments, the present- ment should \>e made on each consecutive installment as it falls due, as if it were (as in fact it is legally considered) a separate note in itself.- It would be different, probably, if the condition were annexed to the note that upon failure to meet any installment, the whole should fall due, in which case notice should be communicated to the drawer or in- dorser that the whole sum was due, and the holder looked to him for payment.' If no time for payment be named in the bill or note it is payable on demand ; * and payable " on demand at sight," is equivalent to payable " at sight." ^ " On call," or " when called for," means the same as " on demand." ^ § 600. "At what hour of the day presentment should he made. — When the bill or note is made payable at a bank, it should be presented during banking hours, the parties exe- cuting their paper payable at a particular place, being bound by its usage; and in such case a presentment after banking hours is sufficient.^ But it is settled that when a bill or note is payable at a bank, a demand made at the bank after banking hours, the officers being there, and a refusal, the cashier or teller stating that there were no funds, is sufficient.^ And likewise, if any person is left at the bank to give an ' Robinson t. Blen, 30 Me. 109. " Oridge v. Sherborne, 11 M. & W. 374. ' See 1 Parsons N. & B. 374. * Thompson v. Ketcham, 8 Johns. 189; Cornell v. Moulton, 3 Denio, 13; Michigan Ins. Co. v. Leavenworth, 30 Vt. 11; Finer t. Clary, 17 B. Mon. 663 '< Bowman v. MoChesney, 33 Grat. 609; Whitlook t. Underwood, 3 B. & 0. 157. See ante, §§ 88, 89. ' Bowman v. McOhesney, 32 Grat. 609. » Dixon V. Nutall, 1 Cromp. M. & R. 307. ' 1 Pars. 419; Parker v. Gordon, 7 East, 385; Elford v. Teed, 1 Maule & S. 28; Thomson on Bills (Wilson's ed.) 303; Byles on Bills (Sharswood's ed.), 340. Story on Bills, §§ 236, 349; Story on Notes, § 235. » Salt SpringsNat. Bank v. Burton, 58 N. Y. 433 ; Bank of Syracuse v. Hol- lister, 17 N. T. 46; Bank of Utica v. Smith, 18 Johns. 280; First National Bank V. Owen, 28 Iowa, 185 ; Goodloe v. Godley, 13 Smedes & M. 227 ; Cohen v. Hunt, 2 Id. 237; Flint v. Rogers, 15 Me. 67. 478 PRESENTMENT FOR PAYMENT. answer/ and it matters not that the notary making the pre- sentment enters by the back cloor.'^ It seems that if the maker of a note payable at a bank goes, and remains there during business hours, prepared to pay, or places funds in bank and holds them there until the close of business, and then withdraws them, in consequence of the non-presentment of the note, the indorser would be discharged, notwithstand- ing presentment to an officer found at the bank after business hours.' In an action against the acceptor on a bill payable in London, and accepted payable at D. & Co.'s, a presentment at D. & Co.'s between 7 and 8 o'clock in the evening, was proved, and that a boy returned, as answer, "no orders." Lord Ellenborough said that if the banker appointed a per- son to give an answer, a presentment at any time while that person was in attendance, was sufficient.* Where, by usage of the bank at which the instrument is payable, the payor is allowed until the expiration of bank- ing hours for payment, a demand made befoi'e that time, un- less the instrument continues in bank until banking hours have expired, is sufficient.^ ' § 601. If the hill or note he fayahle generally '■'■at hanW' — no particular bank being named — -the hour will be deter- mined by the usual banking hours at the several banks of the place where it is payable.^ It is for the jury to say what are business hours, and in fixing them otherwise than in respect to the banks, they are to have reference to the general hours of business at the place, rather than to the custom of any par- ticular trade.'' The courts of England take judicial notice ' Garnett V. Woodcock, 1 Stark, 475; 6 Maule & S. 44; Salt Spriaga Nat. Bank v. Burton, 56 N. Y. 433. ■^ Commercial Bank v. Hamer, 7 How. (Miss.) 448. ^ Salt Springs Nat. Bank v. Burton, 58 N. T, 431. ' Garnett v. Woodcock, supra. 'Planters' Bank v. Markham, 5 How. (Miss.) 397; Harrison v. Crowder, 6 Smedes & M. 464. " U. S. Bank v. Carneal, 2 Pet. 543 ; Churcli v. Clark, 21 Pick. 310. ' Thomson on Bills, 802. TIME OF, 479 of the banking hours of London/ but not of outside cities or places.^ Morse says : " American courts are wont to take judicial notice of the banking hours of any large city lying within the area of the jurisdiction of the court; though there is no authority for supposing that the banking hours of the city of New York would be considered as judicially known to the courts of Boston or Chicago, or vice versa. Unquestionably proof would have to be introduced/' ^ § 602. WJien the instrument is not payable at a hank, presentment may be made at any reasonable hour during the day — during what are termed " business hours," which, it is held, range through the whole day to the hours of rest in the evening.* But the mere fact that the payor had retired to rest would not vitiate the presentment, unless it was at an hour when, according to the habits and usages of the commu- nity, it might be expected that he had retired.® If the pre- sentment be during the hours of rest it will be entirely un- availing.^ § 603. When presentment is at the place of business it must be during the hours when such places are customarily open,'^ or at least while some one is there competent to give an answer. It is only when presentment is at the residence ' Parker v. Gordon, 7 East, 385 ; Jameson t. Swinton, 3 Taunt. 335, ^ Hare v. Henty, 10 0. B. N. S. 65. " Morse on Banking, 371. * Nelson V. Fotterall, 7 Leigh, 194; Cayuga County Bank t. Hunt, 3 Hill, 035 ; Salt Springs National Bank v. Burton, 58 N. Y. 433. ^ Farnsworth v. Allen, 4 Gray, 453, in which case presentment was made at 9 p. M., at the maker's residence, ten miles from Boston. He and his family had retired. Held, sufficient. In Barclay v. Bailey, 3 Camp. 537, Lord Ellenborough sustained a presentment made as late as 8 p. m., at the house of a trader. » Wilkins v. Jadis, 3 B. & Ad. 188, in which case the bill was presented at the place named in the acceptance, between 7 and 8 p. m., but the door was shut and no one answered. Dana v. Sawyer, 33 Me. 394, in which presentment was a few minutes before midnight, the maker being waked up at his residence. ' Lunt V. Adams, 17 Me. 230, in which case presentment at 8 a. m., at the maker's storehouses was held insufficient ; see Dana v. Sawyer, 33 Me. 244. Pre- sentment at 8 p. M. at an attorney's office, was held sufficient in Triggs y. Neuen- ham, 1 Car. & P. 631 ; and in Morgan t. Dayison, 1 Stark. 114, presentment at a counting-room between 6 and 7 p. m was held sufficient. 480 PEESENTMBNT FOR PAYMENT. that the time is extended to the hours of rest.^ But pre- sentment at any hour cannot be considered unreasonable if any person competent to answer be found there who gives an answer refusing to pay.^ Where, however, a bill was presented for payment at a bank in the morning, and refused for v^^ant of effects, and afterward presented at six o'clock in the evening (effects being lodged in the meantime), and again refused, business hours having closed at five o'clock, it was decided that they were not liable in damages to the drawer, their customer, for the refusal — they had paid the bill and expense of notary next day.^ § 604. Witliin tuliat time hills avd notes specifying no time of payme7it must be presented for payment. — All the text Avriters and the adjudicated cases tell us that a bill pay- able at sight, or at a fixed time after sight, or on demand, and a note payable on demand, must be presented for ac- ceptance or payment, as the case may be, " within a reason- able time." But in determining what is reasonable time we are left a riddle which it is diflScult to solve. The maker of the note, who is the principal debtor, is bound to pay when- ever payment is demanded (unless it be barred by limitation), no matter what pei'iod of time may have elapsed since its execution, and when a bill payable at so many days after sight has been presented and accepted, the acceptance fixes the period at which it must be presented to the acceptor for payment. But within what time such a bill must be pre- sented in order to preserve the liability of the drawer and indorsers ; and the note presented in order to preserve that of the indorsers is a problem which has puzzled courts and juries no little. And an eminent jurist has said in respect to the time within which it is necessary to present for payment a note ' In Barclay y. Bailey, 2 Camp. 427, presentment at 8 p. m. at the maker's residence was held suflicient. = Heniy v. Lee, 2 Chitty's Eep. 125 : Garnett v. Woodcock, 1 Stark. R. 475 ; 6 Made & S. 44; Thomson on Bills, 303; Chitty (13th Am. ed.) [*387], 438. ' Whitaker v. Bank of England, Tyrwh. 2G8. TIME OF. 481 payable on demand in order to charge an indorser, that "it depends upon so many circumstances to determine what is a reasonable time in a particular case, that one decision goes but little way in establishing a precedent for another."^ Some of the text writers treat of bills, promissory notes, bankers' cash notes and checks, as falling within one rule ; and a failure to discriminate between these various classes of commercial paper has confused the decisions upon the sub- ject, and left them in a state of contrariety and antagonism which it is impossible to reconcile. In a previous chapter on presentment for acceptance we have discussed the question of reasonable time in respect to the presentment for accept- ance of bills ; and the doctrines there laid down are almost entirely applicable to the pi'esentment of bills for payment.^ The reasonable time for presentment of checks, which are of a different nature, will hereafter be discusssed ; ® and we shall endeavor here to give the principles which determine within what time a bill or note payable on demand must be pre- sented for payment. § 605. In the first place^ respecting hills payable on de- mand. — Such instruments would seem to be closely assimila- ted to bank checks, and to contemplate the immediate pay- ment of the amount called for. They are payable imme- diately on presentment, without grace, and if the drawee and the payee or indorsee reside in the same place, it is laid down by a number of the authorities that they must be pre- sented within business hours of the day on which they are drawn in order to bold the drawer in the event of the failure of the drawee to honor them.* And that if the drawee re- sides in a different place they must be forwarded by the regular post of the day after they are received.^ But these rules are not inflexible. What is reasonable time must de- ' Shaw, C. J., in Seayer v. Lincoln, 31 Pick. 367. ' Chapter XVII, Sec. III. " Chapter XLIX, on Checks, Sec. III. Vol. 3. * Byles on Bills (Sharswood's ed.) 337-8 ; Thomson on Bills (Wilson's ed.), 297; Chitty on Bills (13 Am. ed.) 431 ; Finer v. Clary, 17 B. Mon. 645. ' Ibid. ; Chitty, 433. Vol. I.— 31 482 PRESENTMENT FOR PAYMENT. pend upon circumstances and in many cases upon the time, the mode and the place of receiving the bills, and upon the relations of the parties between whom the question arises.^ Where the draft required indorsement by a school board, which had to be convened, delay of a week to forward it was held justifiable.^ The question, in so far as it relates to sight drafts, has been heretofore considered, and the cases collated.^ § 606. Promissory notes payable on demand would seem to stand on a different footing. It is difficult to perceive why the maker should execute his promise to pay on demand if immediate payment were contemplated ; and although the holder may present it at once for payment, if he be so in- clined, this would seem to be a privilege rather than a duty. Why not pay the money at once, if the note must be pre- sented at once in order to charge the indorser? In England, a note on demand is regarded as a continuing security, which it is not necessary to present for payment on the next day when the parties reside in the same place ; or to send by the post of the next day when they reside in different places;* but in the United States, as a general rule, a diflPerent view is taken, and payment must be speedily demanded, in order to preserve recourse against the indorser, and to preserve the note from defenses which may be made against overdue paper.* It is better in all cases where the question is not settled, to decline taking a note on demand by indorsement, or if taken to present it with the utmost dispatch. § 607. When note given for a loan. — When the note paya- ble on demand has been given for a loan of money, it would then seem clear that it was intended as a continuing security, and the immediate presentment would not be necessary in " story on Notes, § 493. See ante, § 468 to § 478 inclusive. ° Muncy Borough School Dist. v. Commonwealth, 84 Penn. St. 464. = Ante, § 473. Montelius v. Charles, 76 111. 305. ' Brooks V. Mitchell, 9 M. & W. 15 ; Stat, of Lim. runs from date of note on demand. Wheeler v. Warner, 47 N. Y . 519. ' See 1 Parsons N. & B. 376-7 ; Keys v. Fenstermaker, 24 Cal. 331 ; delay of two weeks held tt. discharge indorser. TIME OF. 483 order to charge the indorser.^ la Scotland, as well as in the United States,^ this view has been taken ; and though high authority has maintained a different doctrine,^ we can but re- gard it as one that strikes the mind with the utmost force. Where demand was not made for twenty-one months, it has been considered sufficient in such a case ; * and in Scotland, where a bill on demand was granted as a loan, and not as a remittance, presentment six months after date was held suffi- cient.* § 608. JVotes paijable on demand " with interest^ — When the note is payable on demand with interest, it would seem to have been intended as a continuing interest bearing secu- rity ; but upon this question, as upon those already discussed respecting notes payable on demand, the authorities are in painful contrariety. In England, where a note of £1,000 payable on demand with interest had been indorsed and transferred several years after its date, and the question was whether the indorsee took it subject to equities between prior parties, the Court said : " If a promissory note, payable on demand, is after a cei-tain time to be treated as overdue, although payment has ' Thomson on Bills (Wilson's ed.), 301, citing Leith Banking Company t. Walker's Trustees, 14 S. D. B. 332. '^ Vreeland v. Hyde, 3 Hall, 429, the Court saying: " The rule requiring pre- sentment ■within a reasonable time was intended for and is applicable to negoti- able instruments made for commercial purposes only. It was not intended for cases of suretyship, or notes of a like description, and the present one is evi- dently excluded from the rule by the peculiar circumstances attending it. Here the holder was an old man, not connected with business, residing at soms dis- tance from the city. The defendant knew the circumstances, and cannot claim any peculiar indulgence from a consideration of these facts, as each case must be governed by the circumstances attending it. In this there must be judgment for the plaintiff." ' 1 Parsons N. & B. 380, note d ; Bayley on Bills, ch. vii. p. 142, note ; Perry V. Green, 4 Harr. 61 ; Sice v. Cunningham, 1 Cow. 397, in which case a delay of five months, all the parties residing in New York city, was held to discharge the indorser; Martin v. Winslow, 2 Mason, 241, seven months' delay held fatal; Field V. Nickerson, 13 Mass. 131, seven months' delay held fatal, although the accommodation indorser was told by one of the makers that the note would not be demanded immediately. * "Vreeland y. Hyde, 2 Hall, 429. ' Note m^pra, Thomson, 301. 484 PEESEKTMENT FOR PAYMENT. not been demanded, it is no longer a negotiable instrument. But a promissory note, payable on demand, is intended to be a continuing security. It is quite unlike the case of a check, which is intended to be presented speedily." ^ The circum- stance that the note bore interest did not control the decision of the court ; but in New York that feature was considered material; and where such a note was transferred three or four weeks after date, it was said, " it would be contrary to the general course of business to demand payment short of some proper point for computing interest, such as a quarter, half a year, a year, 7 [*198]. In Illinois, under statute, a note payable to A. B. or bearer must be indorsed to pass the legal title. Garvin v. Wiswell, 83 111. 218; Wilder v. De Wolf, 3-1 Ul. 191 ; Roosa v. Crist, 17 111. 191 ; Hilbora v. Artus, 3 Soammon, 344. " See Story on Notes, §§ 138, 139, 180; Story on Bills, §§ 119, 199, 203; see Carrutb v. Walker, 8 Wis. 253; Hackney v. Jones, 3 Humph. 012; ante, § 105. ' Carruth v. Walker, 8 Wis. 352. * Hopkirk v. Page, 2 Brock. 20 ; Hestone v. Williamson, 3 Bibb. 83 ; Russell V. Swan, 16 Mass. 814 ; Blakely v. Grant. 6 Mass. 386. ' Van Eman v. Stanchfield, 10 Minn. 255. ' Hadden v. Rodkey, 17 Kansas, 439, Valentine, J.: ''If the plaintiff in such a case should desire the benefit that an indorsement would give him, he should plead and prove an indorsement." ' Rand v. Dovey, 83 Penn. St. 280. 528 TEANSFBR OF BILLS AiJD KOTBS BY INDOESEME^ilT. there need not be a new indorsement, because the former in- dorsement is capable of becoming again valid by ratification or confirmation.^ An offer to indorse for another must be accepted in a reasonable time.^ SECTION T. NATTJEE OF THE CONTEACT, AKD LIABILITIES OF INDOESEE. 3 § 666. As to the meaning of the term. — Indorsement, in its technical sense, is applicable only to negotiable paper;" and it is important to bear this in mind, as the effect of in- dorsing a negotiable instrument, and assigning or becoming the surety or guarantor of one non-negotiable is very differ- ent. In common parlance, the word is indifferently applied to bonds, bills and promissory notes, whether negotiable or otherwise, and confusion of ideas Avill only be avoided by holding in view its definite legal signification. § 667. Indorsing an instrument, in its literal sense, means writing one's name on the back thereof; and, in its technical sense, it means writing one's name thereon with intent to in- cur the liability of a party who warrants payment of the in- strument, provided it is duly presented to the principal at maturity, not paid by him, and such fact is duly notified to the indorser. When we speak of a negotiable instrument being indorsed to a party, the idea of its being transferred and delivered to him is included — ^the term indorsement in- cluding delivery to the indorsee;* but it is otherwise as to ' Cartwrigbt v. Williams, 2 Stark. 340. .= Claffin V. Biiaut, 58 Ga. 414. ' Orrick v. Colston, 7 Grat. 195 ; Bank of Marietta v. PIndall, 2 Rand. 475. * Freeman's Bank v. Ruckman, 10 Grat. 120; Bank of Marietta v. Pindall, 3 Rand. 475; Tbomas v. Watkins, 16 Wis. 478; Dann v. Norris, 24 Conn. 333; Adams v. Jones, 13 Ad. & Kl. (40 E. 0. L. R.) 455 ; Lloyd v. Howard, 30 L. J. Q. B. 1 (G9 E. C. L. R.) ; 14 Q. B. 995; Marston v. Allen, 8 M. & W. 493; Green v. Steer, 1 Q. B. 707 (41 E. C. L. R.) ; Hayes v. Caulfield, 5 Q. B. 81 (48 E. C. L. R.) NATURE OF THE CONTRACT. 529 an instrument not negotiable.^ Neither indorsement nor ac- ceptance are complete before delivery.^ Accordingly, where A. specially indorsed certain bills to B., sealed them up in a parcel, and left them in charge with his own servant to be given to the postman, it was held that the special indorsement did not transfer the property in the bills till delivery, and that delivery to the servant was not sufficient, though it would have been otherwise had the delivery been made to the postman.^ But where A. & B., being partners, and indebted to C, A., who acted as C.'s agent, with B.'s concurrence, indorsed a bill in the name of the firm, and placed it among the securities which he held for C, but no communication of the fact was made to C. jjer- sonally, it was held a good indorsement of the firm to C* § 668. An indorsement cannot be partial. — -A bill or note cannot be indorsed for part of the amount due the holder, as ' In Bank of Marietta v. Pindall, 3 Rand. 475, Cabell, J., said: " The term indorse, when applied to Ijills of exchange, negotiable by the custom of mer- chants, or to papers made negotiable by our statutes, may ex vi termini import a legal transfer of the title. But as to bonds and notes not negotiable, the legal title to them passes by assignment only, and as to them indorsement is not equiv- alent to assignment. As to them assignment means more than indorsement ; it means by one party, with intent to assign, and an acceptance of that assignment by the other party. The notes in question are not negotiable according to our laws, but assignable only. They might well be indorsed in Virginia and assigned in Ohio. The pleas, therefore, that they were indorsed in Virginia tendered im- material issues, and were properly demurred to." But " indorsed and delivered'' would be sufficient allegation of assignment as to non-negotiable paper. Free- man's Bank v. Ruckman, 16 Grat. 129. In Commonwealth v. Powell, 11 Grat. 830, there was an indictment against Powell for forging the name of a party before the payee's on the back of a negotiable note, Lee, J., said; " There is no reason for restricting the term " indorsement " to the technical sense applied to it in the lex mercatoria. The 'primitive and popular sense of something written on the outside or back of a paper on the opposite side of which something else had been written, should be given to the word whenever the context shows it to be proper, or it is necessary to give effect to the pleading or other instrument in which it may occur. And such is the sense in which it should be understood in this indictment." ^ Rex V. Lambton, 5 Price, 528 ; Lysaght v. Bi^ant, 9 C. B. 46 (67 E. C. L. R.) ' Rex V. Lambton, 5 Price, 428; Bayley on Bills, 137; Byles on Bills (Shars- wood's ed.) [*146], 265. ' Lysaght v. Bryant, 9 C. B. 46 (67 E. C. L. R.) Vol. L— 34 S30 TKANSFEE OF BILLS AND NOTES BY INDORSEMENT. the law will not permit one cause of action to be cut up into several, and such an indorsement is utterly void as such/ but when it has been paid in part, it may be indorsed as to the lesidue.^ And an indorsement of part of the amount due would give the intended indorsee a lien on the instrument.^ If the indorsement on its face is of the whole instrument, without any apparent limitation, so that the holder could en- force it against the parties liable thereon, it would be imma- terial tliat, as between the indorser and his immediate in- dorsee, a part of the amount only was to be received for the latter's benefit, and the residue as trustee for his indorser.* Where it was indorsed upon a negotiable note by the payee, " pay one-half of the within note to S. F., and the other half to E. B.," and the note was at the time delivered to one of the indorsees for the benefit of both, it was held that a valid title was vested in both, although the other did not ac- cept the transfer until afterward, and that it was proper for them as joint indorsees to bring a joint action against the maker.^ And where distinct shares in a note are sold to dif- ferent persons, they are co-owners, and one co-owner may maintain trover against the other for conversion." ' Lindsay V. Price, 33 Tex. 283; Frank v. Kuigler, 36 Tex, 305; Planters' Bank V. Fvans, 35 Tex. 593. In this case, oa a note for five hundred dollars, the payee indorsed " Pay to L. four hundred dollars out of this note." Suit be- ing brought by a subsequent indorsee in his own name, alleging that he was the legal and equitable owner, but exhibiting the note and indorsements, as part of his petition, the maker and deiendant demurred. Held, that the demurrer was properly sustained. Hawkins v. Cardy, 1 Ld, Eaym. 160; Bayley on Bills (Am. ed.), 93; Thomson on Bills (Wilson's ed.), 184; Hughes v. Kiddell, 3 Biiy, 334, in which case it was held that where two indorsements for parts of the amount were made they were invalid, though together they purported to transfer the whole. " Ibid. ' Byles on Bills (Sharswood's ed.) 391. * Reid V. Furnival, 1 C. & M. 538 ; 5 C. & P. 499 (24 E. C. L. R) ' Flint V. Flint, 6 Allen, 33, Dewey, J., saying: "This action was properly instituted in the names cf the present plaintiffs the indorsement of the entire note being made to the two indorsees, and the claim, as respects the maker, not being divisible into two separate causes of actiim. The delivery to one of the indorsees, and a suit instituted and carried on for the benefit of both, with their concurrence, show a sufficient acceptance of the transfer to them." " Conover v. Earl, 36 Iowa, 167. NATURE OP THE CONTRACT. 531 It has been teld in Indiana that an assignment of a half interest in a note byoneof the joint payees passed his interest in equity ; and under the peculiar statute of Indiana, that the assignee might join in a suit with the other joint payee against the maker. 1 Where a note is payable to "A. and B.," an in- dorsement by one as "A. and B.," is good if the other con- sents thereto.^ Joint indorsements are hereafter considered.* § 669. Nature of the contract of indorsement, and what liabilities are assumed by the indorser. — The indorsement of a bill or note is not merely a transfer thereof, but it is a fresh and substantive contract, embodying all the terms of the in- strument indorsed, in itself. The indorsement of a bill is equivalent to the dravi^ing of a new bill by the drawer upon the drawee (or acceptor, if it be accepted) in favor of the in- dorsee; and the indorsement of a note is equivalent to the drawing of a bill upon the maker, who stands in the relation of acceptor, as it were, in favor of the indorsee.* He engages (1) that the bill or note will be accepted or paid, as the case may be, according to its purport ; but this engagement is con- ditioned upon due presentment or demand, and notice: he also engages : (2) that it is in every respect genuine ; (3) that it is the valid instrument it purparts to be ; (4) that the ostensible parties are competent ; (5) and that he has lawful title to it and the right to indorse it. And if it turns out that any of these engagements but that first named are not ful- filled, the indorser may be sued for recoveiy of the original consideration which has failed,® or be held liable as a party,® without proof of demand and notice.'^ ' Groves v. Ruby, 34 lud. 418. " Cooper v. Bailey, 53 Me. 330. • See § 701, A. * Ingalla v. Lee, 9 Barb. 947 ; Cundy v. Marriott, 1 B. & A. 696 ; Billgerrj- v. Branch, 19 Grat. 418; Evans v. Gee, 11 Pet. 80; Hill v. Lewis, 1 Salk. 133; Suse V. Pompe, 98 E. C. L. R. 538; Edwards on Bills, 383; Chitty (13th Am. ed.) [*83], 98. ' Chitty on Bills [*95], 116. •Story on Bills, § 108; Edwards, 387; Chitty (13th Am. ed.) [*343], 377; Lake V. Haynes, 1 Atk. 381 (1733); Heylin v. Adamson, 3 Burr. 669 (1758) ; Bal- lingalls V. Gloster, 3 East, 483 (1830). ' Copp V. M'Dugall, 9 Mass. 1; Chitty (13th Am. ed.) [*83], 69; see Chapter XXXIII, Sec. I, Vol. 3. 632 TEANSFER OP BILLS AND NOTES BY INDORSEMENT. § 670. Wheu the indorsement is " without recourse " the indorser specially declines to assume any responsibility as a party to the bill or note ; but by the very act of transferring^ it, he engages that it is what it purports to be — the valid obligation of those whose names are upon it. He is like a drawer who draws without recourse ; but who is neverthe- less liable if he draws upon a fictitious party, or one without funds. 'And, therefore, the holder may recover against the indorser "without recourse," (1) if any of the prior signatures were not genuine ; ^ or (2) if the note was invalid between the original parties, because of the want, or illegality of, the consideration ;^ or if (3) any prior party was incompetent, or (4) the indorser was without title. In a Virginia case where a party agreed to have a bond assigned " without recourse" to another, those words were held not to exempt the contractor from liability when it afterward appeared that it had been previously paid, Carr, J., saying : " The very possession of the bond, the claiming it as property, as something binding the obligors, precluded the idea that it was at that moment dis- charged or satisfied; for then it was no bond: it bound nobody, it was not the representative of money. The bond, too, was payable at a future date ; who could have dreamed that it was already mere wax and paper — not a cent due on it?"^ In another case, where a party transferred a negotiable note, after maturity, pending suit, and "without recourse" it was considered, on the authority of the case just quoted, that it appearing that the indorser was already dis- charged by failure in respect to notice, and the maker prov- ing insolvent the transferrer was bound for the amount of the note. But the court held otherwise, laying some stress how- ever on the peculiar circumstances of the case.* § 671. In the first place, as to acce'ptance and jyayment. — The indorser of a bill contracts to pay it at maturity, ' Dumont v. Williamson, 18 Ohio, N. S. 515. ' Blething v. Levering, 58 Me. 437; Hannum v. Richardson, 48 Vt. 508. See i)ost, § 700. Contra, Rayne v. Billo, 27 La. Ann. 623. '■• Mays V. Callison, 6 Leigh. 230. * Ober v. Goodridge, 37 Grat. 878. I ! KATUEE OF THE CONTRACT. 533 if, on presentment for acceptance, it is not accepted ac- cording to its purport, and he is duly notified of the dishonor.^ And the indorser of an accepted bill, or of a note, likewise contracts to pay it, if it be not duly paid by the acceptor or maker.^ It matters not what may be the cause of the drawer's or maker's refusal. The indorser con- tracts to pay on being duly notified that he refuses to pay. He therefore warrants the solvency of the parties — or, in short, warrants that it will be paid, either by them or by himself on receiving notice of their failure. § 672. In the secondplace, as to genuineness. — The indorser contracts that the bill or note is in every respect genuine, and neither forged, fictitious, or altered. Undoubtedly, and by uni- versal admission, this principle applies to the signatures of the drawer, acceptor, and maker of the bill or note, who are the original parties, and it is often expressed in language to the effect that the indorser warrants that it is a genuine instru- ment.^ This rule, however, would not apply where the holder procured the indorsement of a forged note with knowledge of the forgery, and represented to the indorser that it was genuine, or where the holder has received the paper after maturity and without consideration.* Whether or not the indorser's engagement extends to the genuineness of prior indorsements is not so well settled. Undoubtedly the in- dorser admits their genuineness, as he is estopped to deny his ' Ballingalls v. Gloster, 3 East, 481 ; 4 Esp. 268. Lord Elleaborough, C. J., said, "There is no distinguishing the case of an indorser from that of the draw- er." Smith V. Johnson, 37 L. J. Ex. 363; 3 H. &N. 233; Chittyon Bills [*241J, 576. " Ogden V. Sanders, 13 Wheat. 313; Story on Notes, § 135; Chitty on Bills (13 Am. ed.) [*341], 270. ' Edwards on Bills 188, 289; Story on Bills § 111; Coggill v. American Ex. Bank, 1 Corns. 113; Murray v. Judah, 16 Cow. 484; Mcintosh v. Haydon, K. & M. 363 ; Howe v. Merrill, 5 Cush. 83 ; Bell v. DagR, 60 N. Y. 528 ; Hannum v. Richardson, 48 Vt. 508; Condon v. Pearce, 43 Md. 83; Chapman v. Rose, 56 N. T. 137 ; Misher v. Carpenter, 20 N. Y. S. C. (13 Hnn), 604. " Turner v. Keller, 66 N. Y. 66 ; Misher v. Carpenter, 30 N. Y. S. C. (13 Hun), 604. 534 TKANSPEE OF BILLS AKD KOTES BY INDORSEMENT. title, wliich would otherwise be invalid/ and notwithstanding the doubts and dissents which have been expressed, it is clear upon principle that the indorser warrants the instrument throughout. If there be any forged indorsement the indorser cannot recover against any party prior to it,^ and the subse- quent indorser has transferred a thing to which he himself had no right or title. He should plainly be regarded as rep- resenting by the act of ownership, a right of ownership," and be held bound accordingly. In Bayley on Bills it is said, " an indorsement is no warranty that prior indorsements are genuine ; " but the case cited does not satisfactorily sustain that view, and the authorities greatly preponderate against it.* § 673. In the third place, as to validity. — The indorser en- gages that the bill or note is a valid and subsisting obligation, binding all prior parties according to their ostensible relations ; and he may be held liable, although the instrument be entirely null and void as between prior parties themselves ; 'and also as between prior parties and even hona fide holders without no- tice.^ In an early English case, where the suit was by the in- dorsee against the maker of a note void for gaming, Lee, C. J., said: "The plaintiff is not without remedy, for he may sue Church (the indorser) upon his indorsement." * § 674. In another English case, in an action against the drawer of a bill, it was held no defense that it was drawn and ' Ogden V. Sanders, 13 Wheat. 313; Chitty on Bills [*243], 277; Story on Bills, §§ 110, 111. ' Cbitty on Bills [*260, 261], 297. • State Bank v. Fearing, 15 Pick. 533; Harris v. Bradley, 7 Yerg. 310; Oliver V. Andry, 7 La. 496 ; Bruce v. Bruce, 1 Marsh. 165, s. c. 5 Taunt. 485 ; Reding- ton V. Wood, Cal. Law Times, January, 1873, p. 12; 1 Parsons N. & B. 25; 2 Parsons N. & B. 588; Story on Bills, § 111; Story on Notes, §§ 135, 380; Dalrymple v. Hillenbrand, 2 Hun, 488 (9 N. Y. S. 0. R), affirmed, 60 N. Y. 5; White V. Continental Nat. Bank, 64 N. Y. 320. * Bayley, ch. 5, p. 170 (5th ed. 1833), citing East India Co; v. Tritton, 3 B. & C. 280. ' Chitty on Bills (13th Am. ed.) [*82, 90, 95], 98, 111, 116; Roscoe on Bills, 123; Bayley on Bills, ch. 12, p. 369; Byles (Sharswood's ed.) [*135], 250; John- son on Bills, 32 ; Thomson on Bills, 82 ; 1 Parsons N. & B. 318 ; Edwards on Bills, 289, 350; Story on Notes, § 193; Story on Bills, § 190. ' Bowyer v. Bampton, 2 Strange, 1155 (1741). NATURE OF TH3 CONTRACT. 535 accepted for a gaming debt, it having been indorsed over by the drawer for a valuable consideration to a third person, by whom the suit was brought;^ and, in Pennsylvania, that the indorsee of a note given on such a consideration may sue the indorser.^ And, in Virginia, in an action against the maker and four indorsers of a note, it was held that the holder could recover against the fourth indorser, of whom he was the indorsee for value, although it was indorsed for ac- commodation of the maker by the first three 'indorsers, and had been purchased by the fourth at a usurious rate of in- terest.* Upon these principles it has been decided in Georgia, where the Supreme Court has held valid the article of the State constitution which provides that " no court of this State shall try or give judgment, or enforce any debt the con- sideration of which was a slave ; " that the courts should enforce payment by the indorser of a note given for a slave. Brown, 0. J., saying: "The payee of a promissory note given for a slave, who, for a valuable consideration, which was in no way connected with the slave, indorsed and ' Edwards v. Dick, 4 Barn. & Aid. 213 (6 E. C. L. R.) ' linger v. Boas, 1 Harris, 601 (1850). ' Moffett V. Bickel, 31 Grat. 283, Moncure, J., saying: '' If there were any doubt upon this question, I think it would be removed by tlie case referred to by the learned counsel of the plaintiff in error of Edwards v. Dick, decided by the Court of King's Bench in 1833, and reported in 4 Barn. & Aid. 213; 6 Eng. 0. L. R. 405. Abbott, G. J., and Bayley, Holroyd, and Best, JJ., composed the court, and were unanimous. Such a decision of such a court is entitled to our highest respect. But the reasons assigned by the learned judges command more of our respect in weighing its authority than does their high judicial character. * * That, it is true, was a case in which the question arose as to the statute of gaming; while here the question arises in regard to the statute of usury. But the statute of gaming is very brond and sweeping in its terms, just as much so as the statute of usury. And, indeed, Abbott, G. J., in his opinion, places the case upon the same ground as that of usury, and says : ' There is no case upon the statute of usury where a drawer, having parted with a bill for a good consideration, can after- ward set up as a defense an antecedent usurious contract between himself and the acceptor. For, if so, a court of justice would enable him to commit a gross fraud upon an innocent party.' " To same effect, see Morford v. Davis, 28 N. Y. 484; Brown v. Wilcox, 7 Iowa, 414; Frank v. Longstreet, 44 Ga. 185; Burrill v. Smith, 7 Pick. 391. 53G TRANSFER OF BILLS A^D KOTES BY INDORSEMENT. delivered the note to the plaintiff, is liable. The indorse- ment is a new contract, and the court has jurisdiction to en- force the judgment against him on that contract." ^ In such cases the indorsee may not only sue the indorser upon the paper itself, but also upon a count for monej^ had and received.^ But if the holder have any privity in the illegal consideration, he cannot hold the indorser.^ It seems that where a corporation is prohibited from availing itself of the defense of usury, an indorser or other surety upon its pajjer, cannot avoid liability thereon, upon the ground of usury.* § 675. I/i the fourth place, as to competency of original parties. — The indorser contracts that the original parties to the bill or note were competent to bind themselves, whether as drawer, acceptor, or maker ; for otherwise, although ostensible, they would not be real parties to it. Therefore, if the drawer, acceptor, or maker be an infant, lunatic, or married woman, the indorser's contract is broken,'' and he may be sued for recovery of the original consideration which has failed, or upon the instrument itself, without proof of demand and notice.'' ' So, if the instrument purported to be signed by procuration, he engages that there is competent authority in the agent.'^ Thus, in Massachusetts, where the note was executed by the agent, who, as also the ' Graham v. Maguire, 39 Ga. 531. To same effect, see Succession of Weil, 24 La. Ann. 193. ^ Ingalls T. Lee, 9 Barb. 947; Edwards on Bills, 389; Cundy v. Marriott, 1 B. & A. 696 (1831). ' Ackland v. Pearce, 3 Camp. 599; Edwards v. Dick, 4 B. & Aid. 213. * National Bank of Pittsburg v. Wheeler, liO N. Y. 613. 'Haly v. Lane, 3 Atk. 181. The Lord ChancelUor said : " Though a note given by a wife to her husband is void, yet if it is endorsed over by the husband, as between him and the indorsee, it is certainly good." To same effect, see Rob- ertson V. Allen, 59 Tenn. 2.33; Archer v. Shea, 31 N. Y. 8. C. (14 Hun), 493. Fn Erwin v. Downs, 15 N. Y. 575, a note was made by two married women, and indorsed by the defendant for their accommodation. He was held bound to a hona fide indorsee, although the latter knew that the makers were married women when he took it. Prescott Bank v. Caverly, 7 Gray, 317. " See ante, § 669. ' Edwards on Bills, 389; Story on Bills, § 110. NATUEE OF THE CONTRACT. 537 payee, was ignorant that his principal was dead, and the latter indorsed it, he was held, Parker, C. J., saying: ^ "The indorser always warrants the existence and legality of the contract which he undertakes to assign. The indorsee takes it on the credit chiefly of the indorser. Thus, if a note, void between promisor and payee, on account of usury or other illegal consideration, is indorsed lona fide for valuable con- sideration, the indorser must make it good. So, if the in- dorsement is of a note made by a minor or of a feme covert^ and even if the name of the promisor is forged, the indorser is held upon his contract to pay the indorsee." § 676. Whether or not this engagement extends to all antecedent parties is questioned. It is thought by some that prior indorsements are warranted to be by competent parties, as well as to be genuine;^ while others entertain the contrary view.^ The considerations which conduce to the opinion that he warrants genuineness of prior indorse- ments, apply also to their competency, and lead us to the same conclusion that it is warranted. In New York the doctrine of the text has been established by recent decisions. There it has been held that one who indorses a note pur- porting to be executed by a copartnership, impliedly war- rants that it was made by the firm, and cannot in a suit against him dispute it.* § 677. In the fifth place, as to title. — The indorser con- ' Burrill v. Smith, 7 Pick. 291. = 1 Parsons N. & B. 25; Story on Bills, § 110; Story on Notes, § 380, and note; see also Harris v. Bradley, 7 Yerg. 310. = Chitty on Bills (13 Am. ed.) [*24B], 277. But the only authorites cited are East India Co. v. Tritton, 3 Barn. & C, and dissenting opinion of Chambre, J., in Smith v. Mercer, 6 Taunt. 83. The latter citation is no authority; and the former was decided on the ground that the party accepted the bill with knowl- edge of the circumstances respecting the agent's authority. See Story on Bills, § 110, note 1 ; 2 Parsons N. & B. 588 (where Chitty's view is criticised) ; Bayley (5th ed.), ch. 5, p. 170. ^ Dalrymple v. Hillenbrand, 2 Hun, 488 (9 N. T. S. C. R), affirmed in 62 N. y. 5 ; Turner v. Keller, 66 N. Y. 66, but held in this case not to apply where the holder had procured a subsequent indorsement with knowledge of the ante- cedent forgery. 538 TRANSFER OP BILLS AND NOTES BY INDORSEMENT. tracts that he has a lawful title to the l^ill or note, and a right to transfer it.^ If he has stolen or found the instru^ ment, or otherwise acquired possession without title, and it be payable to bearer or indorsed in blank, he might, before its maturity, invest a hona fide indorsee without notice, with a perfect title, although not himself possessing it ; and even after maturity, the hona fide indorsee might get from him some superior rights to his own. But the indorsee might he involved in controversy, or be placed in the distasteful atti- tude of compelling payment by those who did not owe ; and the indorser should not be protected while he brings mis- chief upon others. A forged instrument carries no title to the indorsee ; and where the thief or iinder of negotiable paper payable to order which has been indorsed, and put in circulation by the payee, erases the indorsement, and, sub- sequently, personating the payee, forges his signature, and transfers the paper to a hona fide purchaser for value, no title passes as against the true ownei'.^ § 678. An indorsement falls under the general rule that' the obligations of a personal contract are to be determined by the law of the place of its execution, and therefore an indorser may become responsible for a much higher rate of damages and of interest, upon the dishonor of a note, than he can recover from the drawer;^ and the jurisdiction of the Federal Courts of the United States attaches upon an in- dorsement as a distinct contract, independently of the resi- dence of the original and remote parties to the instrument.* The indorsement or assignment of a bill or note being an independent contract, the circumstances which would in- validate any other contract apply to it with like effect. Thus, a war between the countries of which the indorsee and in- 'Ibid; Redington v. Wood, Cal. Law Times, Jan'y 1873, p. 13; Edwards on Bills, 289; Story on Bills, § 111; Story on Notes, §§ 135, 380. '^ Oolson V. Arnot, 57 N. Y. 353; Graves v. American Exchange Bank, 17 N. Y. 305. ° Slocum V. Pomeroy, G Cranch, 331; Powers v. Lynch, 3 Mass. 77; see foxt, Chapter XXVII, Sec. VITI. * Cofiee V. Planters' Bank, 13 How. 183. NATURE OF THE CONTRACT. 539 clorser are citizens, rendering them alien enemies, any com- mercial transaction between them, such as drawiu"- a bill upon, or making or indorsing or assigning a note to the other, is void.' In a Virginia case, it appeared that checks were drawn by a bank in llichmond, Va., upon a bank in New Orleans, and were indorsed in Petersburg, Va., in February, 1863, while the late war between the United States and Con- federate States was in progress, to a resident of Vicksburg, Miss. Petersburg, Richmond and Vicksburg were then in the Confederate lines, whilst New Oi-leans was in the perma- nent possession of the Federal forces. It was held that the in- dorsement was illegal and void, and that the indorsee could not recover against the indorser, in an action brought after the war.^ § 679. There must be a consideration for an indorsement as between the immediate parties, and while it \^ prima facie evidence in itself of a consideration, the presumption as between immediate parties may be rebutted.^ Where the indorser makes the indorsement after the instrument is de- livered, it would be void for want of consideration.* By the general law merchant the indorser of a negotiable instru- ment is bound instantly, and may be sued after maturity, upon demand and notice. But by the statutes of some of the States the maker must be first sued, and his property first subjected.'' ' Billgerry v. Branch, 19 Grat. 417, 437 ; Griswold v. Waddington, 16 Johns. 438; Willison v. Pattison, 7 Taunt. 439 (2 E. C. L. R.), s. c. 1 J. B. Moore, 133; McCaughy v. Berg, 4 Heisk. 695 ; see ante, § 318. ' Billgerry v. Branch, 19 Grat. 417, 437. = See ante, § 174. * Collier v. Mahan, 21 Ind. 110. ' As in Colorado — Watson v. Kaha, 1 Col. 3S5. Illinois— Mason v. Burton. 54 111. 849 ; Booth v. Storrs, Id. 473. Mississippi — Harrison v. Pike, 48 Mise. 46. 540 TRANSFER OF BILLS AND NOTES BY INDORSEMENT. SECTION II. BT WHOM AND TO WHOM INDOESEMBNT OE ASSIGNMENT MAT BE MADE. § 680. Li the first place, as to who may indorse or trans- fer negotiable paper. — Any person legally competent to enter into a contract may be the indorser, or transferrer by delivery of negotiable paper.^ If payable to the order of the payee, he or his legal representative must be the transferrer. In case of the bankruptcy of the payee of a bill or note, all his rights become vested in the assignee, who may transfer it in their own name ; ^ and the bankrupt cannot ; ^ and in the case of the death of the payee the like right devolves upon his ex- ecutors or administrators.'' But if payable to several persons " as executors," all must concur.^ In Louisiana where suit was brought against the executors of Mary C. Moore and John Moore, who were in their lifetime tutrix and cotutor of D. Magill, to recover judgment on two drafts which said tu- trix and cotutor drew payable to their own order, it was held that they were not personally bound by their indorsement, although they omitted therein to state their fiduciary capac- ity.^ § 681. 1)1 the case of the marriage of a woman who is ' 3 Pars. N. & B. 3: Story on Bills, § 195. ' Chitty, 227; Story on Notes, § 123; ex parte Brown, 1 Glyn & J. 407. " Ashurst V. Bank of Australia, 37 Eng. L. & Eq. R. 149. * Watliins v. Maule, 3 Jac. & Walk. 237 ; Rawlinson v. Stone, 3 Wils. 1 ; Rand V. Hiibard, 4 Mete. 253; Malbon v. Southard, 36 Me. 147; Dwight v. Newell, 15 III. 333. ' Johnson t. Mangum, 65 N. C. 146. ° Lapeyre v. Weeks, 28 La. 665. The Court said: "We do not regard Mary C. Moore and John Moore as indorsers of the drafts. In indorsing the drafts they omitted adding their capacity as tutrix and cotutor. In their fiduciary capacity the drafts were not indorsed and completed by the drawers, unless we regard the signatures of Mary C. Moore and John Moore as made in that capac- ity. Bills drawn by a fiduciary to his own order are not completed unless in- dorsed in the same capacity as drawn. We regard these drafts as completed, and must therefore consider that Mary C. Moore and John Moore indorsed them in the same capacity in which they drew them." BY AND TO WHOM INDORSED. 541 payee or indorsee of a bill or note, the property thereof vests in her husband, and he alone can indorse or transfer it ; and in like manner, if the paper be made payable to her after marriage, her husband alone can indorse or transfer it.^ But this principle is subject to the limitation that the wife may, with the consent of the husband, indorse a bill or note made payable to her, and pass a good title to the indorsee.^ The law being based upon the distinction that coverture of the wife creates a disability on her part to enter into a contract which the assent of the husband may remove.** ■ The indorsement of the wife, under such circumstances, is equiv- alent to that of her husband. Her act becomes in law his act, and the indorsee must claim through the husband by a title derived from him.* If a woman who is the payee of a note payable to her order assigned it by delivery and after- ward married the maker, her indorsement after marriage transfers the legal title.^ § 682. An infant is not bound upon his indorsement of a bill or note, being incapable of making a contract ; but he may, by his indorsement (which is voidable^not absolutely void),' transfer the paper to any subsequent holder, against all the parties thereto, except himself." ' See ante, § 254; Mason v. Morgan, 3 Ad. & El: 30 (29 E. C. L. E.); Chitty 36; Story gn Notes, § 134; Barlow v. Bishop, 1 East, 433; Conner v. Martin, 1 Stra. 516 ; Miles v. Williams, 10 Mod. 343 ; Savage y. King, 5 Shep. 301 ; Miller V. Delamater, 13 Wend. 433. = See ante, §§ 352, 353. " Chitty on Bills, 21, 300 : Stevens v. Beals, 10 Cush. 391 ; Miller v. Delamater. 13 Wend. 433; Hancock Bank v. Joy, 41 Me. 568; Eeakert v. Sanford, 5 Watts & S. 104; Leeds v. Vail, 15 Penn. St. 185; Fredd v. Eves, 4 Harr. (Del.) 385; Cotes V. Davis, 1 Camp. 485 ; Prestwick v. Marshall, 7 Bing. 565 ; 4 Car. & P. 594; Prince v. Brunatte, 7 Bing. N. C. 435 ; 3 Bright, Husb. and Wife, 43; Lin- dus V. Bradwell, 5 Com. B. 583 ; Lord v. Hall, 8 Com. B. 637 ; see anU, §§ 352, 353. * Stevens v. Beals, 10 Cush. 391 ; and cases in note ante ; see also ante, §§ 352, . 253. ' Guptill v. Home, 63 Me. 405. Appleton, C. J.: "As the wife would have been compelled by a court of equity to indorse, her voluntary act is as effectual to transfer to the indorsee the right to sue as if it had been the result of legal compulsion." " Story on Bills, § 196; Story on Notes, § 134; Bayley on Bills, 44; Chitty, 21; 2 Parsons N. & B. 3; Nightingale v. Withington, 15 Mass. 373; Taylor v. 542 TRANSFKR OF BILLS AND NOTES BY INDOKSEMENT. § 683. WTien a bill or note is payable or indorsed to a go- partnersldp, any member of the firm may transfer it during the continuance of the firm, and indorse it in the firm name;^ and. upon the death of a member of the firm, the survivor may indorse it is his own name.^ But the indorsement by a partner to his copartner, or to another person, of a bill or note payable to the firm, in his individual name, w^ill not pass the title to the paper, nor enable the indorsee to bring a suit on it in his own name.^ It has been held, however, that such an indorsement would pass the equitable title.* If there be a dissolution of the copartnership (otherwise than by the death of a partner), the survivor cannot indorse in the firm name a bill or note payable to the firm ; ^ even though the surviving partner had power to settle the partnership af- fairs; " but the contrary had been held if the dissolution were unknown to the indorsee,' and the rule does not apply where the bill or note of the firm was made payable to the partner who, after dissolution, indorsed it.^ § 684. If several perso7is, not partner s^ are payees or in- dorsees of a bill or note, it should be indorsed by all of them." Either one of the joint payees may authorize the other to indorse for him, and an assignment of this interest in the Croker, 4 Esp. 187; Jeune v. Ward, 2 Stark. 336; Grey v. Cooper, 3 Doug. 65; see ante, §§ 337 et seq. ' Story on Notes, § 135 ; Bayley on Bills, 53 ; Barrett v. Eussell, 45 Vt. 43. ' Jones V. Thome, 14 Martin, 463. ' Estabrook v. Smith, 6 Gray, 570 ; Robb v. Bailey, 13 La. Ann. 446 ; Fletcher V. Dana, 4 Blackf. 377 ; Desha v. Stewart, 6 Ala. 852 ; Moore v. Denslow, 14 Conn. 335; Absolem v. Marks, 11 Q. B. 19; Russell v. Swan, 16 Mass. 314; Hooker v. Gallagher, 6 Fla. 351. * Alabama Co. v. Brainard, 85 Ala. 476. ' Sanford v. Mickles, 4 Johns. 224; see ante, § 370. "Abel V. Sutton, 8 Esp. 108; Humphries v. Chastain, 5 Ga. 166; Poltz v. Pouree, 2 Desaus. Eq. 40 ; Parker v. Macomber, 18 Pick. 505 ; see ante, § 372. ' Cony V. Wheelock, 33 Me. 366 ; Lewis v. Reilly, 1 Q. B. 349 ; see ante, § 373. ' Semple v. Seaver, 11 Cush. 314. " Brown v. Dickinson, 27 Grat. 693; Smith v. Whiting, 9 Mass. 334; Sneed T. Mitchell, 1 Haywood, 389; Carvick v. Vickery, 2 Doug. 653. See Sayre v. Frick, 7 Watts <% S. 383; Culver v. Leavy, 19 La. Ann. 302, and^osi §§701 a. 704. BY AND TO WHOM INDORSED. 543 paper from one to the other carries with it such authority.* But there is no presumption of law that one may indorse for the other.^ § 685. A note payable to an executor may be transferred for a debt of the estate? — If the instrument Jbe payable to two oi- more persons as executors or administrators, all must in- dorse ; * but it seems that in other cases one of the personal representatives might indorse.* An executor or administrator will be personally bound by his indorsement, although he add "executor" or "administrator" to his name, unless he expressly specify that recourse is to be had only against the estate of the deceased.^ A negotiable note transferred by the payee, by delivery only, may be indorsed by his personal representative with the same effect as if done by the payee in his lifetime.'' When a bill or note is payable at a bank, an indorsement by "A. B., Pres't," binds the bank.* And so an indorsement by "A. B., Cashier." * If payable to A. or order for the use of B., it can be indorsed by A. only, as the legal interest is in him, not in B.*" § 68G. In the second place^ as to whom trayisfer may be made. — The transfer of a bill or note may be made, of course, to any party who may legally contract with the transferrer. It may also be made to an infant, or to a married woman ; but in the latter case the interest will vest in her husband, who may treat it as payable to himself, or to himself and wife.** In the ' Russell V. Swan, 16 Mass. 314; Goddard v. Lyman, 14 Pick. 268. ' 2 Parsons N. & B. 5. ' Moses v. Clark, 46 Ala. 236. * Smith V. Whiting, 9 Mass. 334. ' Wheeler v. Wheeler, 9 Cow. 34. See 2 Pars. N. & B. 6. " See Beals v. See, 10 Barr, 56; Seaver v. Phelps, 11 Pick. 304; Serle t. Watervvorth, 4 M. & W. 487. ' Molbin V. Southard, 36 Me. 149; Hersey v. Elliott, 67 Me. 527. See Wat- kins V. Maule, 2 Jacob & Walker, 148. ' Aiken v. Marine Bank, 16 Wis. 679; see Leavitt v. Connecticut Peat Co. 6 Blatch. 139, and ante, § 394. » See ante, §§ 392, 417. " Evans v. Cramlington, 2 Show. 509; 1 Show. 4. " Story on Notes, § 136; Richards v. Richards, 2 Bam. & Ad. 477; Burrough V Moss, 10 Barn. & Ores. 558; Philliskirk v. Pluckwell, 3 M. & Selw. 393. 544 TRANSFER OP BILLS AND NOTES BY INDORSEMENT. latter case, should she survive him, she may sue in her owa name. It may also be made to a trustee, or personal represen- tative, in which case it will operate as a transfer to them per- sonally, although the trust may attach to the proceeds in their hands.-' The transfer cannot be made by the husband to his wife,^ except to act as his agent and convey title to anoth(3r.* If the transfer be to an executor or trustee, it will oper- ate as a transfer to him personally, although the trust may attach to the proceeds in his hands.* If a principal make an indorsement in blank to his agent, the latter may fill it up to himself individually, and it will be regarded as between him and all other parties, except his principal, as his own ; or he may fill it for his principal, and act in his name.® The indorsee must, of course, be living at the time of the indorse- ment ; and if he be dead, and the indorsement be with in- tention to invest his personal representative with the legal property in the instrument, it is null and void.^ A promissory note payable to "J. C, Sh'ff " (sheriff), and indorsed " J. C, Sh'if," does not of itself impart notice to the indorsee that the money was payable to J. C. in his ofiicial capacity as sheriff, or as trustee for other parties.' So a note to A. B., receiver, indorsed by him " as receiver," is prima facie his individually, and he may sue upon it in his own name.* § 687. If a bill or note be made payable to a party as " cashier," it will be' regarded prima facie as payable to his bank ; and if so indorsed, as indorsed by his bank." In cases ' Ibid. 2 Gay t. Kingsley, 11 Allen, 345. " Slawson v. Loring, 5 Allen, 340; see ante, § 241. * Richards v. Richards, 2 Bam. & Ad. 447. ' Clark V. Pigot, 1 Salk. 1 26 ; Story on Bills, § 207. " Valentine v. Holloman, 63 N. C. 475. ' Fletcher v. Schaumberg, 41 Mo. 501. ' Davis v. Peck, 54 Barb. 425. = Bank of the State v. Muskingum Branch Bank, 29 N. Y. (2 Tiffany) 619; Collins V. Johnson, 16 Ga. 458; Bank of Manchester v. Slasen, 13 Vt. 334; Folger V. Chase, 18 Pick. 63; Fleckner v. Bank U. S. 8 Wheat. 360; Minor v. Mechanics' Bank, 1 Pet. 46; Wild v. Passamaquoddy Bank, 3 Mason, 505; see ante, S 417. POEM AND VARIETIES OF INDORSEMENT. 545 of indorsement to a castier of a bank as cashier, for example, " to A. B., Cashier," the bank may sue on it, or the cashier may do so for the use of the bank, or in his own name.* And if the indorsement be to the treasurer of the United States, in his official capacity, it will be regarded as to the United States in point of fact, and they may sue upon it in their name.^ And the same principle applies to other gov- ernmental officers.* SECTION III. FOEM AND VARIETIES OF INDOESEMENT. § 688. Firstly. As to the form of the indorsement— T\xe indorsement is generally made by writing the transferrer's name on back of the paper, but it may be written— although unusual and irregular — -on any otter portion of it, even on the face and under the maker's name.* The full name should be written, but the initials will suffice,® as will also any mark instead of the name, made to represent it.*' Writing on tbe paper, " pay the contents to A.," is a trans- fer, so far as it authorizes payment to be made to A., but it does not render the writer liable as an indorser.'' It has been held that the figures " 1, 2, 8," written in pen- cil, was sufficient, connected with evidence tending to show that the party who placed them on the paper intended to " McHenry v. Ridgely, 3 Scam. 309 ; Porter v. Neckervis, 4 Rand. 359 ; Fair- field V. Adams, 16 Pick. 381 ; see ante, § 417, and iwat, Cba.pter XXXVII, Sec. II, Vol. 3. = Dugan V. U. S. 3 Wheat. 173. = See ante, § 433. * Gibson v. Powell, 6 How. (Miss.) 60; Quin t. Sterne, 36 Ga. 333; Herring V. Woodhull, 29 HI. 93 ; Partridge v. Davis, 20 Vt. 449 ; Eex v> Begg, 3 P. Wms. 419; 1 Stra. 18; Thomson on Bills, 181. ' Merchants' Bank t. Spicer, 6 Wend. 443; Palmer v. Stephens, 1 Denio, 471 ; Bank v. Flanders, 6 N. H. 239 ; Rogers v. Colt, 6 Hill, 333 ; Williamson v. John- son, 1 Barn. & 0. 146 ; Corgan v. Frew, 39 111. 3k ' George v. Surrey, 1 M. & M. 516 ; Baker v. Denning, 8: Ad. & El. 94 ; Addy V. Grix, 8 Ves. 504 ; Flint v. Flint, Allen, 34 ;; Brown ¥. Batchers', i&c. Bank, 6 Hill, 443. ' Vincent t. Horlock, 1 Camp. 443. Vol. I.— 85 54G TRANSFER OP BILLS AND NOTES BY INDORSEMENT. bind himself as an iudorser.^ This decision is questioned by Prof. Parsons (vol. 2 N. & B. 17); but with the utmost re- spect for that eminent jurist, it seems to us sound, on the ground that it was intended as a mark to represent the in- dorser's name.^ And it is well settled that any mark which is shown to have been intended as the maker's name, is as valid to bind him as the name itself " A very small matter," says Cunningham, in his Law of Exchange, p. 26, "will amount to an acceptance ; " and he gives as an example the mere memorandum of the date of presentment. The same may be said of an indorsement. It is the intention which gives significance to the mark. A written agreement to pay a note " as if by me in- dorsed," written on it, is considered an indorsement, in the legal sense.^ It is settled that the writing may be done in any legible way, by pen or pencil.* § 689. The indorser may write his'own name, or he may authorize any one to write it for him. If the name be in the handwriting of the paper, but the indorser receives notice, is sued, suffers default and makes no defense or denial until after the maker absconds, he cannot deny his signature; or if he does, proof that he had assumed other paper simi- larly indorsed would be conclusive against him.^ The indorsement must, as a general rule, be somewhere on the paper itself, or attached thereto, and unless it is, the party cannot be held liable as an indorser,^ but a promise made on a sufficient consideration will sustain an action upon its breach.'' When a note is transferred with guaranty, the transfer may be good, though the guaranty be void under the statute of frauds.* ' Brown v. Butchers' Bank, 6 Hill, 443. ' Redfleld & Bigelow's Leading Cases, 110, 111. ' Pinnes v. Ely, 4 McLean, 173. < Geary v. Physic, 5 Barn. & C. 234; Brown v. Butchers' Bank, 6 Hill, 443; Closson V. Stearus, 4 Vt. 11. ' Weed V. Carpenter, 10 Wend. 403. ' Fenu v. Harrison. 3 T. R. 767. ' Mason v. Pulling, 4 Camp. 51. ' Crosby r. Roub, IG "Wis. 016. ITOEBI AND VARTETIES OF INDORSEMENT. 547 § 690. It is not necessary, however, that the indorsement should be upon the original bill or note, in order to constitute such, in the full sense of the terra. It sometimes happens, that by rapid circulation from hand to hand, the back of the paper is completely covered by indorsements ; and in such cases the holder may tack or paste on a piece of paper suffi- cient to bear his own and subsequent indorsements, and thereon the indorsements may be made. Such addition to the original instrument is called an allonge, and it becomes, for the purposes above named, incorporated as a part of it.^ § 691. Secondly. As to the varieties of indorsement. — There are various liabilities which may be engrafted on a negotiable instrument, evidenced by the terms of the indorsement thereon. An indorsement may be (1) in full or (2) in blank ; it may be (3) absolute or (4) conditional ; it may be (5) restrictive ; it may be (6) without recourse on the in- dorser; and there, may be (7) joint indorsements of the in- strument, (8) successive indorsements, and also (9) irregular indorsements. § 692. (1) 1)1 the first place, an indorsement in full is one which mentions the name of the pei'son in whose favor it is made ; and to whom, or to whose order, the sum is to be paid. For instance : "Pay to B., or order," signed A., is an indorsement in full by A., the payee or holder of the paper, to B. An indorsement in full prevents the bill or note from being indorsed by any one but the indorsee.^ And none but the special indorsee or his representative can sue upon it." Where the payee wrote on the back of a note which he transferred, "I this day sold to Catherine M. Adams the within note," it was held an indorsement to the purchaser, Peters, J., saying: "We think that the defendant thereby ■ Crosby V. Roub, 16 Wis. 622, 636 (1863); Folger v. Chase, 18 Pick. 63; French t. Turner, 15 Ind. 59; Story on Notes, §§ 121, 151, 173; Story on Bills, §§ 204, 218 ; Byles on Bills [*145], 363 ; Edwards on Bills, 267. ' Mead v. Young, 4 T. R. 28. ' See Vol. II. §1181. Lawrence v. Fussell, 77 Penn. St. 460; Reamer v. Bell, 79 Id. 393. 548 TKANSEBE or BILLS AND NOTES BY INDORSEMENT. assumed all the liabilities of an ordinary indorsement of the note. No word in the writing indorsed upon the note nega- tives or qualifies sucli an idea. * * The only restriction is that the indorsement is made special to Catherine M. Adams." ^ § 693. (2) In the second place, an indorsement in hlanh is one which does not mention the name of the indorsee, and consists, generally, simply of the name of the indorser written on the back of the instrument. When the bill or note is in- dorsed in blank, it is, as has been said, transferable by mere delivery to the transferee ; but one indorsed in full must be indorsed again by the indorsee, in order to render it transfer- able to every intent — for he who indorses to a particular person, declares his intention not to be made liable except by that persoa's indorsement over. As to an indorsement in blank, it was said by Lord Mansfield, in Peacock v. Rhodes, 2 Doug. 633: "I see no difference between a note indorsed in blank and one ^jayable to bearer. They both go by de- livery, and possession proves property in both cases." ^ § 694. The receiver of a negotiable instrument indorsed in blank, or any hona fide holder of it, may write over it an indorsement in full to himself, or to another, or any contract consistent with the character of an indorsement;^ but he could not enlarge the liability of the indorser in blank by writing over it a waiver of any of his rights, such as demand and notice.* The indorsement may be before or after the instrument itself is completed ; and while it is yet in blank ; and the indorser will be bound according to its terms w^hen ' Adams v. Blethcn, 66 Me. 19 (1876). '' See Palmer v. Nassau Bank, 78 111. 380; Gaar v. LouisTJlle B. Co. 11 Bush. (Ky.) 180; Carter v. Sprague, 51 Cal. 239. ^ " See ante, §§ 142 et seq. ; Evans v. Gee, 11 Pet. 80; Eees v. Conocheague Bank, 5 Rand. 329 ; Hance v. Miller, 21 111. 636 ; Hunter v. Hempstead, 1 Mo. 67 ; Rikerv. Cosby, 2 Penn. 911 ; Central Bank v. Davis, 19 Pick. 870; Tenney v. Prince, 4 Pick. 385; Condon v. Pearce, 43 Md. 83. ' 2 Parsons N. & B. 20 ; Edwards on Bills, 273 ; Central Bank v. Davis, 19 Pick. 376. FORM AND VABIETIES OF INDORSEMENT. 549 filled up, the indorsement of a blank paper being considered " a letter of credit for an indefinite sum." ^ Where there are several indorsements in blank, the holder may fill up the first one to himself, or he may- deduce his title through all of them.^ He may also strike out any number of several indorsements. Thus, if there were six, he might strike out the fourth, fifth and sixth, and sue the others ; * but if he strikes out any intermediate one he releases all who indorsed subsequently, as he deprives them of their recourse against him.* But where there is a special indorsement to a particular person, it has been held that the holder cannot strike it out and insert his own name ; for being payable to the order of the special indorsee, the law cannot presume that it has come rightfully into the hands of the holder until there is a special indorsement to him, or an indorsement in blank. To hold otherwise would defeat the very object of the special indorsement, which is to notify the woi'ld that it can only be transferred to a stranger by the actual indorsement of the special indorsee, and especially is it notice to the maker not to pay to any one but the special indorsee. And if he pays it to a stranger when it is without indorsement by the special indorsee he acts at his own risk.® And if the special indorsee or his assignee strike out his name in the special indorsement and insert his o^vn, it is a material alteration of the special indorser's contract, and no recovery can be had against him." It has been held, that if a holder through several indorse- ments fills up an early blank indorsement payable to him- self, without striking out the subsequent indorsements, he ' Violett V. Patton, 5 Oranch, 142; Lord Mansfield, in Russell v. Langstaffe, 2 Doug. 514. See ante, § 142. " Ritchie V. Moore, 5 Muaf. 388; Craig v. Brown, Pet. 0. C. E. 171; Ells- wortii V. Brewer, 11 Pick. 316; Cole v. Cusliing, 8 Pick. 48; Emerson v. Cutts, 13 Mass. 7, 8. ' RitcMe V. Moore, 5 Mnnf. 888. * Curry v. Bank of Mobile, 8 Port. (Ala.) 360. • Porter v. Cushman, 19 HI. 572; see ante, Chapter XX, Sec. I. ' Grimes t. Piersol, 25 Ind. 246. 550 TRANSFEK OP BILLS AND NOTES BY INDORSEMENT. does not discharge such subsequent indorsers; but that he may, after suing unsuccessfully those prior to the one filled up to himself, sue the subsequent indorsers.^ § 695. In a Virginia case,^ Green. J., said, in delivering the opinion of the Court : " A blank indorsement does not per se transfer a title ; * but is an authority to the holder, either to hold it as the agent of the indorser, or to claim it as his own by assignment, at his election, without any further act to be done by the assignor. The blank indorsement is conclusive proof of the assent of the indorser to transfer the note to the holder, if he elects to take it as a transfer. The assent and election of the holder to treat the indorsement as a transfer, is proved as well by suing upon it in his own name as by writing over it an assignment to himself, and it is the assent of both parties to the transfer which perfects it, and not the form in which that assent is evidenced." S 696. If a bill or note be once indorsed in blank, though afterward indorsed in full, it will still, as against the drawer, acceptor, maker, payee, the blank indorser and all indorsers before him be payable to bearer, though as against the special indorser himself, title must be made through his indorsee.* The holder under a blank indorsement cannot fill it up so as to make the note payable in part to one person and in part to another. The indorser's contract is single and entire to pay the note to the party, or to that person named by him ; and it is no part of his contract that the sum shall be broken into fragments, and he obliged to pay in fractions to different persons.® § 697. (3 & 4) In the third and fourth, as to absolute and conditional indorsements. — An absolute indorsement is one by ' 3 Parsons N. & B. 19 ; Cole v. CusHng, 8 Pick. 48. See 3 Parsons N. & B. 19, note, and the observations of the author on tlie case cited. ^ Rees V. Conococheague Banli, 5 Rand. 339. = See Clarli v. Pigot, 1 Salk. 126 ; Lucas v. Haynes, Id. 130. * Smith V. Clarke, Peaks, 235 ; Walker v. McDonald, 3 Bxch. 537. ■■ Erwin v. Lynn, 16 Ohio, N. S. 547. FORM AND VARIETIES OF INDOESBMEKT, 551 which the indorser binds himself to pay, upon no other con- dition than the failure of prior parties to do so, and of due notice to him of such failure (protest preceding it when neces- sary, as in the case of a foreign bill). A conditional indorse- ment is one by which the indorser annexes some other condi- tion to his liability. Sometimes the condition is precedent, and sometimes subsequent. Thus, " Pay to A. B., or order, if he arrives at twenty-one years of age," or, " if he is living when it becomes due," is an indorsement upon a condition pre- cedent. " Pay A. B., or order, unless, before payment, I give you notice to the contrary," is upon a condition subsequent. The condition attached to the indorsement in no manner aifects the negotiability, of the paper.^ Where a bill was indorsed, payable to the indorsee or transferee on a certain condition, and was aftervvard ac- cepted and passed through several hands, and was finally paid by the acceptor before the condition was satisfied, it was held that the acceptor was liable to pay the bill again to the payee.'* But it seems that a bill cannot be indorsed with a condition that in a certain event the indorsee shall not retain the power of indorsing it to another.^ " The drawer is bound to take notice of the condition annexed to an indoi'sement, for when a person accepts a bill after a conditional indorsement, and pays it to an indorsee of this conditional indorsee while the condition of the first in- dorsement is unfullfilled, he is liable in second payment to the first indorser, being bound to look at the conditional indorsement as a limitation ex facie of the bill, in the title of the party claiming payment." * § 698. (5) In the fifth place, as to restrictive indorsements. — An indorsement may be worded so as to restrict the farther negotiability of the instrument, and it is then called a restric- ' Story on Notes, § 149; Story on Bills, § 217. = Robertson v. Kensington, 4 Taunt. 30; Savage v. Aldren, 3 Stark. 233 (3 E. C. L. R.) ' Soares v. Clyn, 14 L. J. Q. B. 313; 8 Q. B. 34 (35 E. C. L. R.) ' Thomson on Bills, 233. 552 TEANSFER OF BILLS AND NOTES BY INDOESEMENT. tive indorsement. Thus, " Pay tlie contents to J. S., only," or " to J. S., for my use," or " to order, for my use," are re- strictive indorsements, and put an end to tlie jDaper's trans- ferability.^ But " pay J. S., or order, value in account with H. C. D.," would not be restrictive.^ Where a bill was in- dorsed " pay A. B., or order, for the account of C. D.," A. B. pledged it with the defendant, who advanced money upon it to A. B. personally, it was held that the form of the indorse- ment was in itself notice to the defendant that A. B. had no authority to raise money on the bill for his own benefit, and that C. D. could recover against him in an action of trover.^ So where a bill was indorsed, " pay J. C. or order on account of B. G. & S.," it was held, that it operates as notice that J. C. held it in trust for B. G. & S., and that neither he nor his indorsees had any property in it.* So where a bill was indorsed by A. " pay B. or his order for my use," and B. discounted it with his bankers, who received payment of the acceptors, it was held, in an action for money had and received, that the bankers were bound to refund the amount to A.^ So " credit my account (signed), James B. Scott, cashier," is a restrictive indorsement, and prevents further negotiation of the bill." The words " for collection," which are frequently inserted on paper put in bank to be collected, makes the indorsement restrictive, and the iudorser is competent to prove that he is not the owner of it, and did not mean to give title to it, or its proceeds when collected.' ■ Power V. Finnie, 4 Call, 411; Brown v. Jackson, 1 Wash. C. C. K. 513; Ancher v. Bank of England, Doug. 615 ; Robertson v. Kensington, 4 Taunt. 30; Sigourney v. Lloyd, 8 B. & C. 623 ; Snee v. Prescott, 1 Atk. 247. The following case arose in Texas. L. & M. made a note payable " to B. S. & Co. for the use of E, & M. S." At the time the note was made B. S. & Co. indorsed it in blank and delivered it to the usees, E. & M. S., who, alleging the insolvency of L. & M., sued B. 8. & Co. as original obligors. The consideration of the note was money used by the usees. B. S. & Co. were held liable as original promisors or sureties. Harrison v. Sheirburn, 36 Tex. 73. ' Buckley v. Jackson, L. R. 3 Exch. 135. ° Treuttel v. Barandon, 8 Taunt. 100. * Blaine v. Bourne, 11 R. I. ' Sigourney v. Lloyd, 8 B. & C. 633 (15 E. C. L. R.) ; 5 Bing. 525 ; 3 Y. & J. 220. ' Lee v. Chilicothe Branch Bank, 1 Bond. 387. ' Sweeney v. Easter, 1 Wall. 166. FORM AND VARIETIES OF INDORSEMENT. 553 Such an indorsement merely makes the indorsee agent for the indorser to collect the note, but it has been held does not invest him with such title as to make him a proper party plaintiff in a suit.^ The negotiability of an instrument having been restricted, it may be revived by a subsequent indorsement.^ If the paper be originally negotiable, an indorsement, in order'to be restrictive, must be made so by express words, and if it simply direct payment to a certain person by name, without adding the words, " or order," it will not be con- sidered a restrictive indorsement and payable to him only.* § 699. An indorsement "for my use," or "for collection" — not being an actual transfer of the amount — may be re- called at pleasure.* All the presumptions are against restric- tions to negotiable paper, and unless clearly restrictive the indorsements will be held otherwise.^ An indorsement " for collection" made by the payee is canceled by his subsequent indorsement to another indorsee for value.® It is clear that a parol agreement on the indorsement of a promissory note to the effect that the transfer should be without recourse upon the indorser, cannot be interposed as a defense against a subsequent hona fide holder without notice. Nor would the case be varied by the fact that it was transferred to such holder by mere delivery, and that he declared on the prior indorsement as though made to him- self.^ § 700. (6) In the sixth place, as to qualified mdo)'sements, or indorsemeiits without recourse. — An indorsement qualified by the words " without recourse," " sans recours^'' or " at the indorsee's own risk," renders the indoi'ser a mere assignor of the title to the instrument, and relieves him of all responsi- ' Rock Co. Nat. Bank v. HoUister, 31 Minn. 385. = Holmes v. Hooper, 1 Bay, 160. ' Leavitt v. Putnam, 3 Corns. 494 ; Story on Notes, § 143 ; Story on Bills, §§ 19, 56. * Thomson on Bills (Wilson's ed.) 184; Marius, 72. ' Potts V. Read, 6 Esp. 57 ; Treuttel v. Baiandon, 8 Taunt. 100. " Atkins V. Cobb, 56 Ga. 86. ' Skinner V. Church, 36 Iowa, 91; Kepost, § 719. 554 TRANSFER OF BILLS AND NOTES BY INDORSEMENT. bility for its payment,^ though not from certain liabilities which have been already enumerated.^ But such an indorse- ment does not throw any suspicion upon the character of the paper. As said in Virginia,^ Green, J. : " An indorsement without recourse is not out of the due course of trade. The security continues negotiable, notwithstanding such an in- dorsement. Nor does such an indorsement indicate, in any case, tliat the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party or parties to the note. On the contrary, he takes it solely on their credit, and the indorser only shows thereby, that he is unwilling to make himself responsible for the payment." " I transfer all my right and title to the within note, to be enjoyed in the same manner as may have been by me," has been held in effect an indorsement without recourse.* The words " without recourse," written under the signature of one not the payee, upon the back of a note, are regarded as sur- plus and ineffectual.^ In New York where the firm of Bran- der Murray v. Lardner, 3 Wall. 710 ; see Chapter XLVH, on Coupon Bonds, Sec. m, vol. a ; and Collins v. Gilbert, 94 U. S. (4 Otto), 757. ' Spooner v. Holmes, 103 Mass. 503; Seybel v. National Currency Bank, 54 N. Y. 388. ••• Thayer v. Manley, 15 N. Y. S. C. (8 Hun), 551 ^876). 634 EIGHTS OP A BONA FIDE HOLDER, SECTIOISr II. WHAT IS MEANT BY VALUABLE CONSIDERATION". § 7V7. lo tbe second place he must have acquired the in- strument for a valuable consideration.^ In some cases it is said that the holder must have parted with " full value," sometimes "feir value," and sometimes the expression, "for value " is used. In New York it has been said that " the consideration for the transfer must be full and fair as well as valuable," ^ while in another it is said that "when a parting with value is proved, the amount of the consideration is not otherwise important than as bearing on the question of actual or con- structive notice."^ This latter view seems to us the correct one. The owner of a bill or note has as much right to sell it as he has to sell his horse. The prior parties, by making it negotiable, have warranted the right of the payee or indorsee to make title to another. And if he does so at any price, the holder acquires full inghts and interests in the instruments as against all parties, unless he had notice of defects, or willfully abstained from inquiry under circumstances which justify the imputation of bad faith. The price at which the paper is offered may amount prima, facie to notice, and create the pi'esumption of bad faith in the purchaser. If a person were to offer a fine horse for sale for five cents, the very nature of the offer would warn the purchaser that he acted at his peril. And so if the amount which the holder offers to take for a negotiable instru- ment is'totally insignificant as compared to its face value, it might be under the circumstances implied notice that there was something wrong about it; and if he took it without inquiry, he should not be protected. There is no conflict be- tween this view and the cases which hold that gross negli- ' See as to cousideration of Neg. Instr., Vol. 7, §§ 160 to 307, inclusive. ' Goldsmid v. Lewis County Bank, 13 Barb. 410. = Gould V. Segee, 5 Duer, 370, Duer, J. (1856). WHAT IS MEANT BY VALUABLE CONSIDERATION, 635 gence \yill not of itself be sufficient to impeacli the holder's or purchaser's title. This is uot merely gross negligence, but may be regarded as willful or fraudulent blindness, and ab- stinence from inquiry, so great as to amount to evidence of bad faith. For it is the obvious suggestion of reason that a lona fide owner would not throw away his property for a mere song, and that the purchaser acted in bad faith when he acquired it for comparatively nothing. § 778. Where the plaintiff, knowing that the maker was able to pay, bought his note for $300 from a third party, paying only $5, and the note had been executed without con- sideration, it was held that the mere nominal price charged him with constructive notice of the defect.^ Like decisions have been rendered where the plaintiff bought a note for $333 33, paying only $125;^ and where the plaintiff pur- chased a $300 note for $50;^ but the grounds of decision in the latter cases were simply that there was gross negli- gence, which alone is not now deemed a sufficient defense. § 779. It is difficult, indeed impossible to lay down the exact line of demarcation and state what proportion the amount paid must bear to the face of the paper in order to charge the purchaser prima facie with notice, or raise the presumption of bad faith on his part. But, in general terms, it may be said that the consideration should be so utterly tri- fling as to bear upon its face the impress of fraud — to leave open no reasonable conjecture but that the purchaser must ' Dewitt V. Perkins, 33 Wis. 474 (1868), Dixon, C. J. : " The buying of a note against a solvent maker, the pui'chaser knowing him to be such, for a mere nom- inal consideration, is very strong, if not conclusive evidence of mala fides. It is constructive notice of the invalidity of the note in the hands of the seller, such as to put the purchaser upon inquiry, which if he fails to make he acts at his peril." See also Lay v. Wissman, 30 Iowa, 305. ' Hunt V. Sanford, 6 Yerg 387 (1834). = Gould V. Stevens, 43 Vt. 135 (1870). In Coliger v. Francis, 58 Tenn. 433, the holder paid $355 for an overdue note for $1,650 to a party in embarrassed circumstances, the purchaser had means of ascertaining approximate value of the note. It was held that while there was no proof of fraud the circumstances were suspicious, and the holder was restricted in his recovery against the indorser's estate to the amount paid with interest. See also Petty v. Hinmac, 3 Humph. 103; Holman v. Hobson, 8 Humph. 107. 630 EIGHTS OF A BONA FIDE HOLDER. have known, from the very nature of the facts, that they could not have originated from any but a corrupt source.^ The known solvency of prior parties would of course strengthen the argument of implied notice and bad faith wherever they were alleged. In Pennsylvania the sale of a $250 note of a maker known to be solvent, by a stranger to the plaintiff for $100, was considered legitimate, and to constitute the purchaser a hona fide holder without notice ; ^ and so in Ohio, the pur- chase of a note for $2,500, secured by mortgage, for just half the amount ($1,250) was viewed in the same light.* SECTIOlSr III. THE OEDINAEY OR USUAL COUESE OF BUSINESS. § T80. In the third place, the holder must have acquired the paper in the ordinary or usual course of business, by which phrase is meant to describe a transfer according to the usages and customs of commercial transactions. Whether or not a transfer in payment of pre-existing debt is of this character, was for a long time questioned ; but the doctrine is now settled, that it is.* And when the paper is transferred as collateral security for a contemporaneous or pre-existing debt, there are many variations of the question^ and many views taken, as to whether or not it is in the usual course ' Seepos«, §§795, 796. ' Phelan v. Mosa, 67 Penn. St. 59 (1871), overruling Beltzhoover v. Black- stock, 3 Watts. 20. ° Bailey v. Smith, 14 Ohio St. 403, Ranney, J,, saying: "There is very little difficulty in saying that the rule does not require the full face of the paper to be paid. No decision to that effect has ever been made, and the strongest expres- sions customarily used do not import anything more tlian that the holder must have given for the paper what it vraa reasonably and fairly \yorth. To hold otherwise would be to deprive all paper, for any cause not worth its face, of one of the most essential and valuable incidents of negotiability, and most effectually to stop its circulation. A moment's reflection will satisfy any one how deeply and disastrously such a holding would affect the business and commerce of the conntiy." See^Ji^si, §§ 795. 796. * See Chapter VII, on Consideration, ante, % 184. ORDINARY COURSE OF BUSINESS. 637 of business for a valuable consideration, according to the mercantile use of those terms.^ There are some transfers, however, in which the legal or equitable title to the instru- ment passes, but which are not in the usual course of business. § 781. Thus, a receiver appointed by a court, and who comes in possession of a bill or note of a litigant by operation of law, acquires no better title than such litigant possessed, for, as said in TSTew York, " he acquires title by legal process, and not in the regular course of dealing in commercial paper." * The like decision was rendered in Connecticut, in respect to the receivers of assets of a bank, for the benefit of its creditors.* So the assignment of a bill or note by operation of a bankrupt or insolvent law, is an instance out of the usual course of commercial business.* So also is a transfer by the payee or holder to a trustee for the benefit of creditors.® But under statute in the State of Iowa, it has ' See Chapter XXV, Sec. 1. '' Briggs V. Merrill, 58 Barb. 379 (1870). As to assignments, see ante, Chap. XXII. ' Litehfield Bank v. Peck, 39 Conn. 384. •* Billings V. Collins, 44 Me. 271. ' Roberts v. Hall. 37 Conn. 305. A. obtained a note from B. by fraud, and transferred it to C. as trustee for certain creditors in part, and the balance for A.'s wife. The creditors accepted the transfer, and directed the trustee to bring suit. B. had demanded the note back before the transfer, and pleaded fraud against the trustee. It was held not a transfer in the usual course of busi- ness, and the defense was allowed. Carpenter, J., saying: That commercial paper may be properly used as security for a pre-existing debt. " The purpose for which the paper was used is exceptional and unusual. We apprehend that cases like this are rarely to be met with in business circles. Let us examine it more carefully. A man has a piece of negotiable paper, with which he wishes to pay or secure certain debts. If there is but one debt, he can transfer it directly to the creditor, and the law protects the transaction. This is according to the usual course of business. But if he transfers it to a friend, to hold till due, and then collect it, and with its avails pay the creditor, that is unusual and sus- picious upon its face, and requires explanation. Unless some good reason can be shown for such a proceeding, the law ought not to protect it. But it is said there were several creditors, which, it is claimed, sufficiently explains the fact, that the security was effected through the intervention of a trustee. Let us test this position. If the paper is right and free from defects why not sell it in market, or get it discounted, and with its avails pay the debts at once ? Or, if 638 EIGHTS OF A BONA FIDE HOLDER. been held, that an indorsement of a note by the sheriff, who had levied upon it, had the same effect as if made by the holder himself.^ § 781 a. A bill or note in the hands of one not the payee, and unindorsed where it is not payable to the payee or bearer, would be open to defenses in the hands of the the debts are not to.be paid until the paper is due and collected, why not retain it in his own hands until due, and if necessary sue and collect it in his own name ? Such a course would be natural and usual. But what honest reason can be suggested, why it should be transferred to a third party, who has no interest in the matter, to be sued in his name ? Such a course is unusual, and not in the course of trade. The transaction at once suggests the idea that there is some equity in favor of the maker, inherent in the note itself, and which can be made available against the payee, and which the payee is seeking to avoid t * * * The fact that a part of this money was payable to the wii'e of Yale (the payee), is worthy of notice, also in this branch of the case. To that extent, as we have already seen, the plaintiff was the agent of Yale. * * The fact that Yale himself is still interested in this note, either in his own right or the right of his wife, should suggest to all parlies concerned an inquiry as to the reason and oc- casion of this conveyance." ' Earhart v. Gant, 33 Iowa, 481, Cole, J., saying: " The note was payable to John Walker, but was then, or afterward became, the property of Isaac Walker, against whom John Morford had a judgment. Under executitm issued thereon, John Walker, still holding the note, was garnished ; and such legal proceedings were had as that the note was indorsed by the sheriff to John Morford, pursuant to order of the court. Morford agreeing to take the same at its face. It is now and here claimed, by appellee's counsel, that such transfer did not operate as an indorsement under the law merchant by the payee, to transfer the note discharged of its infirmity. Our statute says (Rev. § 8272) : ' Bank bills and other things in action may be levied upon and sold, or appropriated as hereinafter provided, and assignments thereon by the officer shall have the same effect as if made by the defendant, and may be treated as so made.' And it is further provided, by sec- tion 8233, that money, promissory notes, etc., may be appropriated without being advertised or sold, if the plaintiff will receive them at their par value. The pre- cise point made is, that the transfer by the officer is to have the same effect as if made by the defendant, and that Isaac Walker, and not John Walker, was the execution defendant. We think this too narrow a construction to place upon the statute, which is surely a remedial one. In our view, the garnishee, holding such paper, and having legal title in himself, may properly be said to be the defendant, at least in the garnishment proceedings, A fair construction of the sections, wlien their purpose is considered, will make the defendant include not only the execution defendant, but also the garnishee defendant. The indorse- ment by the oflBcer is to have the same effect as if made by the defendant in the garnishment. Such an indorsement will, therefore, have the same effect in this case as an indorsement by the legal holder under the law merchant." ORDINARY COURSE OF BUSINESS. 639 transferee, for suet possession and transfer are not in the usual course of business.^ A bill in the hands of the drawer, and payable to his order, might be properly acquired from him, and the holder under his indorsement would be pro- tected against defenses, for the acceptor is the primary debtor, and the drawer the original creditor.^ Whether or not a bill in the hands of the acceptor before maturity could be acquired from him under an indorsement in blank by the payee, so as to protect the indorsee from defenses available between anterior parties is a disputed question. In New York, it has been held that it cannot, on the ground that the presumption in such a case is that the acceptor either holds it for acceptance, or after payment, in either of which cases he would have no authority to negotiate it.^ In England it has been held that the party acquiring the bill for value under such circumstances is entitled to protection as a bona ' Gilson V. Miller, 39 Mich. See post, § 812; Mills t. Porter, 11 N. Y. S. C. (4 Hun), 524. = Merritt y. Duncan, 7 Heisk. 156. Seeposf, § 812. " Sec ante, § 753, and post, § 812; Central Bank v. Hammett, 50 N. Y. 158 (1872). Id this case, Balch & Co. being indebted to defendants, gaVe them an acceptance upon a draft drawn by them, and made payable to order of B. & Co. Failing to get it discounted, they returned the bill to B. & Co , who gave them another acceptance. Instead of canceling the first draft as instructed, Balch & Co. negotiated it to the Central Bank, before maturity. Held, that the Central Bank could not recover against the drawers. N"o notice is taken in the opinion of the court, of the case of Morley v. Culverwell, 7 M. & W. 174 (1840), where the contrary doctrine is held, and has been well expounded by Lord Abinger. Cen- tral Bank v. Hammett, 50 N". Y. 686 (1873). The Court saying: " The possession of a bill or note payable to bearer, or indorsed in blank by one not a party to the instrument, is presumptive evidence of ownership. But a possession of such an instrument by a party to it only authorizes a presumption of such rights and obligations of the several parties as are indicated by the paper itself. The actual relations to each other of the several parties to the instrument, are presumed to be precisely such as the law declares, in the absence of any sjjecial circumstances to take the instrument out of the general rule, and vary the liabilities of the parties as between each other. An individual negotiating for the purchase of a bill or note from one having it in possession, and whose name appears upon it, must assume that the title of the holder, as well as the liability of all the parties, is pi'ecisely that indicated by the instrument ; that is, he cannot assume that the person in possession has any other or different rights, or that the liability of the parties is other or different from that which the law would imply from the form and character of the instrument." . 640 EIGHTS OF A BONA FIDE HOLDER. fide holder without notice, on the ground that he has a right to presume that the bill has been drawn for accommodation of the acceptor, and Lord Abinger, C. B., in giving judgment to this effect has forcibly expressed this view, which seems to us correct.^ SECTION" IV. § 782. In ih.Q fourth place, the holder, in order to acquire a better right and title to the paper than his transferrer, must become possessed of it before it is overdue. For if it were already paid by the maker or acceptor, and had been left outstanding, it would be already discharged, and they would not be bound to pay it again to any one who acquired it after the period when payment was due. And if it Avere not paid at maturity, it is then considered as dishonored ; and although still transferable in like manner and form as before, yet the fact of its dishonor, which is apparent from its face, is equiv- alent to notice to the holder that he takes it subject to its infirmities, and can acquire no better title than his trans- ferrer.* The doctrine applicable to this subject has been ad- ' Morley v. Culverwell, 7 M. & W. 174 (1840). Lord Abinger, 0. B., saying: " Suppose mutual accommodation acceptances to be given, and to be exchanged before fliey have been negotiated, the names remaining on them: — the parties may circulate them so as to give a title to a bona fide holder, before they became due; and wherein does this case differ from that ? Therefore a bill is not ptop- erly paid and satisfied according to its tenor unless it be paid when it is due; and consequently if it be satisfied before it is due, by an arrange- ment between the drawer and acceptor, that does not prevent the acceptor from negotiating it, or an innocent indorsee for value from recovering upon it." To same efi'ect see the late case of Witte v. Williams, 8 Rich. (S. C.) 304, and opinion of Moses, C. J., which disapproves of the conclnsion in Central Bank v. Hammett, 50 N. Y. 158. In the first edition of this work the author stated the law upon the authority of the New York decision as therein laid down. Examination of the English authorities, and of the South Carolina case, has satisfied him of the error; and that the English view is correct. " Texas V. Hardenberg, 10 Wall. 58; Davis v. Miller, 14 Orat. 1; Arents v. Commonwealth, 18 Grat. 750; Marsh v. Marshall, 53 Penn. St. 306; Kellogg v. Schnaake, 56 3to. 137 ; Kittle v. Da Lamater, 3 Neb. 335 ; Goodson v. Johnson, 35 Tex. 633. See ante, § 724. THE PHEASE " BBFOEB MATUETTT." 641 mirably stated by Chief Justice Shaw, who says : " Where a negotiable note is found in circulation after it is due, it car- ries suspicion on the face of it. The question instantly arises, why is it in circulation ? why is it not paid ? Here is something wrong. Therefore, although it does not give the indorsee notice of any specific matter of defense, such as set- off, payment, or fraudulent acquisition, yet it puts him on in- quiry ; he takes only such title as the indorser himself has, and subject to any defense which might be made if the suit were brought by the indorser." ^ But there is this limitation to this doctrine : that if the holder acquired the paper after maturity, from one who became a hona fde holder for value, and without notice before maturity, he is then protected by the strength of his transferrer's title.^ § V83. It is said by Professor Parsons in respect to bills on sight, and bills or notes payable on demand : " A reason- able time must elapse before mere non-payment dishonors the bill or note. What this time is, has not been and cannot be fixed by any definite and precise rule. One day's delay of paper on demand certainly would not dishonor it ; five years certainly would. And in each case, how many days, or weeks, or months are requisite for this effect, must depend upon the test, whether so long a time has elapsed, that it must be inferred from the particular circumstances and the general conduct of business men, both of which should be considered, that the paper in question must have been in- tended to be paid within this period, and if not paid, must have been refused." ^ And again the same learned author ob- serves : " If the paper be demanded and refused within that period before the termination of which there is no presump- tion of dishonor, a taker after such demand, and within that period, having no notice or knowledge of the demand or re- fusal, cannot be affected by it. For example, suppose a note on demand so circumstanced that the court would say the ' Fisher v. Leland, 4 Gush. 456. ' See ante, § 736, and post, 786, 803, 805. ' 1 Parsons N. & B. 303, 364. Vol. I.— 41 G42 EIGHTS OF A BONA FIDE HOLDEE. lapse of one montli is not sufficient to dishonor it, and the lapse of two months is sufficient, and a transferee takes it on the twenty-fifth day without notice or knowledge that on the twenty-fourth day it had been demanded and refused. We should say that the Jaw would allow him the right of pre- suming non-dishonor during the whole of that month, and would protect his rights accordingly." ^ § 784. There is always a presumption when the payee's or an indorser's name is indorsed upon the bill or note, that it was done before its maturity ; and likewise the presump- tion that the holder required the instrument before maturity, whether the legal title be transferable by indorsement, or by delivery merely.^ Indeed, the law will presume in favor of the holder, according to many authorities, that the indorse- ment or assignment was of even date with the instrument itself; ^ but it can rarely be the case that any stronger or more definite presumption will be needed than that he acquired it before maturity, as he is then protected against defenses available to his transferrer. We can conceive, how- ever, of cases in which the further presumption that the trans- fer was of even date might be desirable to the holder — as where it were proved that at a certain time after date of the paper he had notice of a defect which would prevent his bet- ter title, if it were not then estaVjlished. But the presumption as to the time of acquiring the in- strument is not a strong one. The indorsement is almost invariably without date, and without v/itnesses. The trans, fer by delivery merely leaves no footprint upon the paper by which the time can be traced. And the presumption in favor of the holder as to the time of transfer being without any written corroborative testimony, is of the slightest nature, and open to be blown away by the slightest breath of suspicion.* ■ 1 Parsons N. & B. 270; see also Bartrum v. Caddy, 9 Ad. & E. 275-8; Cripps V. Davis, 12 M. & W. 159, 165. " See ante, § 738; New Orleans, .fco. v. Montgomery, 95 U. S. (5 Otto), 16 (1877). ' See ante, § 728. ' Gibson, J., in Snyder r. Riley, 6 Barr. 164; Hill v. Kraft, 39 Penn. St. 186. THE PHRASE "BEFORE MATURITY." 643 § 785. The presumption that the holder of a note acquired it before maturity has been held not to apply wliere the note is payable in so short a time as one day after date, on the ground, as stated, that the time run is so short that it is not probable that it would be put into circulation before maturity — at least, not sufficiently so to raise a presumption in favor of the holder; that such paper is rather evidence of a debt than a promise made with expectation of payment at the time named, and does not belong to the class of paper in- tended for negotiation and circulation for commercial pur- poses.^ But this departure from the general principle, which relieves the holder from nothing but the burden of proof, is not sanctioned by the law merchant; and although the time is brief, the execution of a negotiable instrument payable at so brief a period is in itself evidence of a need of money for the period named. And we know of no reason why a party may not use negotiable instruments for a short loan as well as a long one. § 786. Accommodation paper. — While it is the general rule that if the paper be overdue at the time of the transfer, tliat circumstance of itself is notice, and he can acquire no better title than his indorser, yet, if the indorser's title were unim- peachable, the fact that the paper was executed for accommo- dation without consideration, and that the indorsee knew it, is no defense even when the paper was overdue at the time of the indorsement, it being considered that parties to accom- modation paper hold themselves out to the public by their signatures to be bound to every person who shall take the same for value, to the same extent as if paid to him person- ally.*^ If the holder received the paper after maturity from ' Beall V. Leverett, 33 Ga. 104, Lyon, J. " This doctrine seems just, and is sustained by numerous authorities, though not without conflict. Favoring it, see Story on Notes, § 194; Story on Bills (Bennett's ed.), §§ 188, 191 ; 2 Rob. Prac. (nev/ ed.), 253; Byles on Bills (Shars- wood's ed.), 285 ; Davis v. Miller, 14 Grat. 6 ; Sturtevant v. Ford, 4 M. & G. 101 ; 4 Scott, G08; Charles v. Marsden, 1 Taunt. 324; Lazarus v. Cowie, 3 Q. B. 459 (43 B. C. L. R.); Caruthers v. West, 11 Ad. & El. 141. In R-.dfield & Bigelow's Leading Cases, 216, 217, it is said: " To hold otherwise would be to encourage G44 EIGHTS OE A BONA FIDE HOLDER. an indorser who took it bona fide before maturity, there is no question as to his right to recover ; ^ but if he takes it after maturity from the painty for whose accommodation it was made, indorsed or accepted, tkere is conflict of decision on the subject ; ^ but the doctrine of the text is sustained by the highest authority.^ § 787. A note payable by installments is overdue when the first installment is overdue and unpaid, and he who takes it afterward, takes it subject to all equities between the original parties ; * and if any installment of interest on the note be overdue and unpaid, which fact is disclosed on the face of the note, the like rule applies.^ But where more than one note is executed upon the same consideration, they ai'e not all to be regarded as dishonored when one is overdue and unpaid.^ A purchaser of a negotiable instrument, before the close of business hours, on the last day of grace, and before its dis- honor, has been held, and, as we think, correctly, to be fully protected as having received it while current ; '' but a con- ;trary view has been taken in Massachusetts.** The effect of a purchase pending suit is hereafter considered.' SECTIOlSr V. WHAT IS MEANT BY " PtJECHASEE WITHOUT NOTICE." § 7S8. In the fifth place, the holder must have acquired the jiaper without notice of its dishonor. Sometimes a bill fraud, and to relieve the party from the very responsibility -which he expected to meet, and which, upon every principle of justice and fair dealing, he should be compelled to abide by." See ante, §§ 720, 783. ' Howell V. Crane, 13 La. Ann. 130; Riegel v. Cunningham, 9 Phila. (Penn.), 177; Siory on Bills, § 188. See ante, §§ 730-783; post, §§ 803-805. "^ Chester v. Dorr, 41 N. Y. 370; Coghlin v. May, 17 Cal. 500. ' See ante, § 730, and note 1, supra. ' Vinton v. King, 4 Allen, 503; Field v. Tibbetts, 57 Me. 359; Hart v. Stick- ney, 41 Wis. 630 (1877). ' Hart v. Stickney, 41 Wis. 630 (1877). " Boss V. Hewitt, 15 Wis. 360. ■" Crosby v. Grant, 30 N. H. 273. " Pine V. Smith, 11 Gray, 38. It did not appear in this case whether or not the transfer was during business liours, nor did the court seem to attach any im- portance to the inquiry. • See § 11S9, Vol. II. WHAT IS MEANT BY "PUECHASBE WITHOUT NOTICE." 645 payable at so many days after sight, or after a certain event, is presented for acceptance, and dishonored before the time of payment by non-acceptance ; and in such cases, the party acquiring it with notice of sucli dishonor stands upon the same footing as one who acquires it after maturity, and is chargeable in like manner with constructive notice of any flaw in the right or title of his transferrer.^ Sometimes the instrument bears upon its face the marks of its dishonor for non-acceptance, and in such cases it bears, as has been said. " a death wound apparent on it." '^ If it has been dishonored for non-payment when payable on demand or at sight, the like rule applies ; but it is only when the bill or note is pay- able at a day certain that the purchaser can perceive, by the very fact that it is overdue, that it has been dishonored. The United States Supreme Court has observed on this subject that " a person who takes a bill which, upon the face of it, was dishonored, cannot be allowed to claim the privileges which belong to a bona fide holder. If he chooses to receive it under the circumstances, he takes it with all the infirmities belonging to it, and is in no better condition than the person from whom he received it." ^ And the doctrine was enforced in another case, where, in speaking of a promissory note so marked as to show for whose benefit it was to be discounted, and that discount had been refused, the same tribunal held that all those dealing in paper " with such marks on its face must be presumed to have knowledge of what it imported."* § 789. Notice of fraud, defect of title, and illegality. — In the sixth place, in order to stand upon a better footing than his transferrer, the holder must acquire the instrument without notice of fraud, defect of title, illegality of consideration, or other fact which impeaches its validity in his transferrer's ' Crossly v. Ham, 13 East, 498. ^ Goodman v. Harvey, 4 Ad. & El. 870; Byles [*100], 383. = Angle V. N. W. &c.. Ins. Co. 93 U. 8. (3 Otto), 341-2; Andrews v. Pond, 13 Pet. 65. • Fowler v. Brantly, 14 Pet. 318; Angle v. N. W. &c. Ins. Co. 93 U. S. (3 Otto), 343. G46 EIGHTS OF A BONA FIDE HOhDHK. hands ; and the word notice in this connection signifies the same as knowledge. Knowledge of fraud or illegality impeache?) the hona fides of the holder, or at least destroys the superiority of his title, and leaves him in the shoes of tlie transferrer.^ And any fraud upon the transferrer incapacitates the trans- feree, or one acquiring from him with notice, from recovering against the transferrer.^ If notice of fraud be communicated to the holder before he pays for the paper, although the con- tract has been entered into, he cannot stand upon the foot- ing of bona fide holder without notice,^ and if he has paid a part of the amount agreed upon when he receives notice of fraud, he will only be protected to that extent, and no more.* Actual notice of the defect is not required, where the evi- dence of the infirmity consists of matters apparent on the face of the instrument. Constructive notice in such cases is held sufficient, upon the ground, that, when a party is about to perform an act which he has reason to believe may affect the rights of third persons, an inquiiy as to the facts is a moral duty, and diligence an act of justice.'' § 790. Notice of accommodation paper. — It is to be observed, however, that knowledge of the mere want of consideration as between the original parties will not alone prevent the purchaser from becoming a hona fide holder and occupying a better position than his ti'ansferrer. Ac- commodation paper is daily placed in market for discount or sale, and an indorsee or purchaser who knows that a bill or note still current was drawn, made, accepted, or indorsed without consideration is as much entitled to recover as if he had been ignorant of the fact,^ and even where he acquires it ' Hanauer v. Doane, 13 Wall. 343; Fisher v. Leland, 4 Cusli. 456; Norvell v. Hudgins, 4 Munf. 496; Kasson v. Smith, 8 Wend. 437; SKilding v. Warren, 15 Johna. 270; Harrisburg Bank v. Meyer, 6 Serg. & E. 537; Ryland v. Brown, 3 Head, 370. ' Lenheim v. Fay, 37 Mich. 70. ' Crandell v. Vickery, 45 Barbour, 156. ' Dresser v. Misso. &c. R. R. Co. 93 U. S. (3 Otto), 93; see anU, § 757. ' Angle T. N. W. &c. Ins. Co. 92 U. S. (2 Otto), 342; see Vol. H. § 1408. ' Thatcher v. West River Nat. Bank, 19 Mich. 196; Jones v.' Berryhill, 25 Iowa, 389; Grant v. Ellicott, 7 Wend. 237; Powell v. Waters, 17 Johns. 176; WHAT IS MEANT BY "PUROHASBK WITHOUT NOTICE." 647 overdue.^ Nor is it a good ground of defense against a hona fide holder for value that he was informed that the note was made or the Vnll accepted in consideration of an executory contract, unless he was also informed of its breach.^ If he has such knowledge he cannot recover.^ And if any one pur- chase accommodation paper with knowledge that the terms and conditions on which the accommodation was given have been violated, he is not a bona fide holder as against the party who lent his name for accommodation.* The defense must not only show that the paper was diverted from its purpose, but also that such diversion was known to the holder when he recfives it, misapplication not being such fraud as shifts the burden of proof.*^ § 791. The rule in New York is different, and there it is ijrandiu v. Leroy, 3 Paige, 509; Bank of Ireland v. Beresford, 6 Dow. 237; Mentross v. Clark, 3 Sandf. 115; Croniae v. Kellogg, 30 111. 11; Oharleb v. Mars- den, 1 Taunt. 224. In Thatcher v. West River Nat. Bank, 19 Mich. 203, Chris- tiaucy, J., said: " The want of consideration, and the assurance of Sprague that the note would be taken care of, do not affect the right of the bank as indorsee, though taking- it with notice. Mere accommodation paper is generally, at least, without consideration, and such assurances, express or implied, are always given or relied upon when such accommodation paper is given. Such facts might con- stitute a good defense as against the party for whose accommodation it is given, but to allow them to defeat a recovery by an indorsee who advances money upon it — when that is the purpose for which it is given — would defeat the very pur- pose for which such paper is made, and render the transaction absurd." ' See ante, §§ 726, 783, 786; post, §§ 803, 805. ' Patten v. Gleason, 106 Mass. 433; Davis v. McCready, 17 N. Y. 230; Croix V. Sibbett, 15 Penn. St. 238; Bend v. Wietze, 12 Wis. 611. In Harris v. Nicholls, 26 Ga. 418, it is held that failure of consideration may be pleaded against a transferee who took the note with knowledge of the con- tract, and that the consideration was liable to fall. The doctrine of the text, however, seems sound in reason and authority. » Wagner v. Diedrich, 50 Mo. 484; Coffman v. Wilson, 2 Mete. (Ky.) 542; Bonman v. Van Kuren, 29 Wis. 218. * Small V. Smith, 1 Den. 583; Thompson v. Posten. 1 Duyall, 415; Daggett V, Whiting, 35 Conn. 373; Fetters v. Muncie Nat. Bank, 34 Ind. 251; Ilickerson V. Raiguell, 2 Heisk. 339 ; Evans v. Kymer, 1 B. & Ad. 538 ; Roberts v. Eden, 1 Bos. & P. 398; Buchanan v. Findley, 9 B. & C. 738; Key v. Flint, 8 Taunt. 21 ; Hidden v. Bishop, 5 R. I. 39. 'Stoddard v. Kimball, 6 Cush. 469; Robertson v. Williams, 5 Munf. 331; Gray v. Bank of Kentucky, 39 Penn. St. 365; Clark v. Thayer, 105 Mass. 216; Mohawk Bank v. Corey, 1 HiD, 513. 648 RIGHTS OF A BONA FIDE HOLDER. held that a diversion is such fraud as to shift the burden of proof upon the holder.^ But the principle of the text is, we think, in conformity with the current and weight of authority and the true theory of the law merchant. The fraud which shifts the burden of proof must be iu the consideration, or representations used in obtaining the execution of the instru- ment, and not an after breach of trust iu diverting it from the uses for which it was intended. § 792. What amounts to diversion of accommodation paper. — It is immaterial that paper executed or indorsed for ac- commodation is not used in precise conformity with agree- ment, when it does not appear that the accommodation party had any interest in the manner in which the paper was to be applied. No change in the mere mode or plan of raising the money, though not applied to the purpose intended by the accommodation party, will constitute a misappropriation. In order to constitute a misappropriation, there must be a fraudulent diversion from the original object and design; and it is now well settled that where a note is indt)rsed for the accommodation of the maker, to be discounted at a pai- ticular bank, it is no fraudulent misappropriation of the note, if it is discounted at another bank or used in the payment of a debt or otherwise, for the credit of the maker. If the note has effected the' substantial purpose for which it was de- ' Farmers' & Citizens' National Bank v. Noxon, 45 N. Y. 763 ; Grocers' Bank V. Penfield, 14 N. Y. S. C. (7 Hun), 279; see Moore v. Ryder, 65 N. Y. 439; Edwards on Bills, 319, 321. In Wardell v. Howell, 9 Wend. 170, the note was indorsed for accommodation of the maker, to be used in renewal of a former note due at a bank. It was transferred by the maker as collateral security for another debt, which negotiation is held, in New York, not to constitute the creditor a hrnia fide holder for value. Sutherland, J., said: " Where a note has effected the sub- stantial purpose for which it was designed by the parties, an accommodatioD in- dorser cannot object that is was effected in the precise manner contemplated at the time of its creation. * * But where a note has been diverted from its ori- ginal destination, and fraudulently put in circulation by the maker or his agent, the holder cannot recover upon it against an accommodation indorscr, without showing that he received it in good faith, in the ordinary course of trade, and paid for it a valuable consideration." Spencer v. Ballon, 18 N. Y. 331 ; Schcpp V. Carpenter, 51 N. Y. 604. WHAT IS MEAKT BY signed by tlie parties, an accommodation maker or indorser cannot object that the accommodation was not effected in the precise manner contemplated, where there is no fraud, and the interest of the indorser is not prejudiced.^ § 793. Thus, where a bill was indorsed for accommoda- tion, for the purpose of enabling the maker to get the note discounted at a particular bank, and the maker used it to take up notes on another bank, the Court said : " Within the proper legal sense of the term, there has been no diversion of the note from the purpose for which it was made and in- dorsed. The indorsers lent their names for the purpose of giving the maker credit, generally, and without any concern with the use which should be made of that credit." ^ Nor would it be a misappropriation to discount a note with a private person that was intended to be discounted at a par- ticular bank, the proceeds being applied to the purpose intended.^ And so where a bill was indorsed for accommodation, to enable one to raise money, and he applied it to the payment of a pre-existing debt, it was held immaterial, Downey, J., saying : " The accommodation party must have some interest in the application of the money, otherwise he is not in con- dition to contend successfully that there has been a misappli- cation of it, or of the security on which it was to be raised." * It has been said, in Pennsylvania, by Black, C. J.: "The maker of an accommodation note cannot set up the want of consideration as a defense against it in the hands of a third person, though it be there as collateral security merely. He who chooses to put himself in the front of a negotiable in- ' Duncan & Sherman v. Gilbert, 29 N. J. L. R. (5 Dutch.) 521 ; Briggs v. Boyd, 37 Vt. 538 ; Purchase v. Mattison, 6 Duer, 87 ; Wardell v. Howell, 9 Wend. 170. See Schepp v. Carpenter, 51 N. Y. 604; Reed v. Trentman, 53 Ind. 438. = Mohawk Bank v. Corey, 1 Hill, 513. ' Powell V. Walters, 17 Johns. 176 ; Bank of Chenango v. Hyde, 4 Cow. 567. ' Quinn v. Hard, 43 Vt. 375; Fetters v. Muncie National Bank, 34 Ind. 254; see Schepp v. Carpenter, 51 N. Y. 602. But it has been held otherwise where the paper was made payable to the party to whom it was to be discounted, and was passed to another for a pre-existing debt. Farmers,' &o. Bank v. Hathaway, 36 Vt. 539. (350 EIGHTS OF A BONA EIDB HOLDEE. strument, for the benefit of his friend, must a1)ide the conse- quence, and bas no more right to complain if his friend accommodates himself by pledging it for an old deljt, than if he had used it in any other way." '■ In accoi dance with these principles, an accommodation indorser cannot complain that a creditor of the holder, with whom the latter has de- posited as collateral security for his own debt, has sold the note to a bona fide puichaser for value, in violation of the rights of the payee and depositor; for if the payee could pledge the note as collateral security the subsequent sale does not increase the indorser's liability.^ In Iowa, D. & E,. executed a note to J. or bearer. The note was joint, but D. was in fact a surety. The understanding was that R. was to negotiate the note to J. for a yoke of cattle, and execute a chattel mortgage to D. to indemnify him. E, , instead, traded the note to L. for a yoke of cattle, the latter knowing that the note was designed to be negotiated to J. for a yoke of cattle, and suspecting D. was a surety, but having no knowl- edge that he was to have the chattel mortgage. It was held that D. was liable to R. on the note.^ § 79 i. Where, however, the note is designed to be dis- counted for the purpose of taking up other jDaper of the person giving the accommodation, or was othei'wise intended for his benefit, the failure to have it discounted would be a misap- propriation,* and if the bank refused to discount it, the holder should return it to the accommodation maker or in- dorser.'' When there is a full consideration for acceptance of a bill, it matters not whether it be applied according to original agreement, or to another purpose.^ ' Lord V. Ocean Bank 20 Penn. St. 384; see also Kimbro v. Lytle, 10 Yerg. 417; Rutland Bank v. Buck, 5 Wend. 66. In this case, a person signed a note as surety for accommodation of other parties, the note to be discounted at a cer- tain bank. The bank refused to discount it, and it was passed off by the prin- cipals as collateral for the payment of a judgment. Held, no misappropriation. But see Merchants' Rat. Bank v. Comstock, 55 N. Y. 24. ' Dawson, v. Goodyear, 43 Conn. 548. = Laub v. Rudd, 37 Iowa, G18. ' Wardwell v. Howell, 9 Wend: 170; Moore v. Ryder, 65 N. Y. 440. '- Kasson v. Smith, 8 Wend, 437; Denniston v. Bacon, 10 Johns. 108. ' Moore v. Ward, 1 Hilt. 837. WHAT IS MEANT BY "PURCHASBK WITHOUT NOTICE." 651 § 795. Express and implied notice. — It is quite certain that if the notice or knowledge of the transferrer's defective title be express, it will destroy the purchaser's better position ; for if he is actually informed of the infirmity — as when he is told by the maker that it is without consideration, and that it will not be paid — he errs vyillingly if he perseveres in nego- tiating for the paper, and has no claim whatever for peculiar protection.^ But express notice is not indispensable. The circumstances of the transaction may be of such a character as to intimate strongly a defect in the title, and if they are such as to invite inquiry they will suiBce, pi'ovided the jury think that abstinence from inquiry arose from a belief or suspicion that inquiry would disclose a vice in the paper.^ Then indeed his hona fides would be impeached. But further than this, gross negligence, which is not in itself proof of mala fides, may be so great as to amount to proof of notice. " I agree," says Baron Parke, " that notice and knowledge mean not merely express notice, but knowledge or the ■ means of knowledge to which the party willfully shuts his eyes." ^ § 796. Story says that " it will be sufficient if the circum- stances are of such a strong and pointed character as neces- sarily to cast a shade upon the transaction, and to put the holder upon inquiry."* But this statement of the rule is not clear and satisfactory, for it means that if the circumstances are of such a nature as to cast a shade of suspicion upon the transaction (and it seems to us it can mean nothing less), it contradicts the principle laid by the author in the same para- graph, that suspicious circumstances, and gross negligence as to inquiry into them, are not sufficient to impeach the hold- er's title. And it is reraai'kable that this very proposition ' Norvill V. Hudgins, 4 Munf. 496 ; Dogan v. Dubois, 3 Rich. Eq. 85. ' See ante^ § 777 et seq. " May V. Chapman, 16 Mees. & W. 355; Hamilton v. Vought, 34 N. J. Law, 187; Edwards v. Thomas, 66 T\Io. 486, Sherwood, C. J. : "Neither courts nor juries are allowed to shut their eyes to natural and rational inferences, cleariy deducible from proven facts." * Story on Promissory Notes, | 197. 652 RIGHTS OF A BONA FIDE HOLDER. of Story has been taken ]:)y one authority as concurrent with the view of Gill v. Cubitt, heretofore commented on ;* while another follows it as adopting the very contrary precedent.^ And the more correct opinion, as it seems to us, is, that the circumstances must be so pointed and emj^hatic as to amount to proof of mala fides in the abstinence of inquiry, or such as to \)Q prima facie inconsistent with any other view than that there is something wrong in the title, and thus amount to constructive notice. In other words, we would say that if the circumstances are of such a character as to create such a distinct legal presumption audi prima facie proof of fraud, or of some equity between prior parties, it would operate as legal information and constiuctive notice to the transferee. This rule fixes a criterion for judgment which is definite, and seems to us the one which should be adopted.^ The proof of the existence of the circumstances amounting to implied no- tice must be clear. As said by Woodbury, J. : " It must clearly appear that the indorsee was apprised of such circum- stances as would have avoided the note in the hands of the indorser." ■* § 797. TJie mere statement of the consideration in a hill or note does not put the holder upon inquiry whether or not it really passed, or has failed in any respect. It is rather as- suring than otherwise, for it is evidence, if the note be genuine, that it was given for value ; and the specification of what value can no more challenge the holder's investiga- tion than the omission of such specification.^ In legal effect Bayne, 52 Mo. 533 {post, p. 600, note 1), wliich seems inconsistent with the case above cited. ' Hamilton v. Marks. 53 Mo. 80 (1873) ; see ante, § 775. But see Horton v. ' Greoaux v. Wheeler, G Tex. 526 (1851). ' In Missouri it was said in tlio recent case of Horton v. Bayne, 52 Mo. 533, that '' unless there be such a combination of suspicious incidents as would in legal contemplation afford ground for the presumption that the purchaser of the paper was aware at the time of its acquisition of some equity between the orig- inal parties thereto," he would not be affected by them. * Perkins v. Challis, 1 N. H. 254. " Hereth v. Merchants' Nat. Bk. .34 Ind. 380 ; Bank of Commerce v. Barrett, 38 Ga. 136; Doherty v. Perry, 38 Ind. 15; t-ee ante, §§ 41, 51. WHAT IS MEAKT BY "PURCHASER WITHOUT NOTICE." 653 it does not qualify the paper in any manner.^ But in North Carolina, where the note was expressed to be for " the Rocky Swamp tract of land," those words were held to put the holder on inquiry, and to fix him with notice that it could not be collected unless a title to the land were made. " In this way," said the court, " significance is given to the words referred to, otherwise they must be ti'eated as idle and super- fluous." ^ A.nd it has been held that a party taking a note, knowing the consideration, is subject to any defense arising out of it.^ But this cannot be, and has been held not to be law.* Where a note to an insurance company bears on its face the memorandum " on policy. No. 33,386," it is nowise affected, although the policy contains a provision for allow- ance as set-off of notes due the company.® In New York where the expressed consideration of a note was " one knit- ting machine, warranted," it was held that breach of a parol contract warranting the article could not be pleaded against a bona fide holder before maturity, Boardman, J., saying ; " Giving to the words the broadest meaning possible they do not imply that there has been a breach of the warranty. They cannot be construed as notice to the purchaser of a de- fense to the note in the hands of the payee. If they do, it must be because the law will presume a breach wherever there is a warranty. That would be preposterous." ^ No- tice that .a note was given for a certain patent right has been held insufficient to put the purchaser on inquiry.' § 798. The fact that one who takes a promissory note in ' Beardslee v. Horton, 3 Mich. 500; Doherty v. Perry, 38 Ind. 15. = Rand v. State, ff45 N. C. 175. = Thrall v. HortoD, 44 Vt. 386 ; see Harris v. Nichols, 36 Ga. 414, as to case where party knows consideration to be doubtful. * Bordeu v. Clark, 36 Mich. 410; Saokett v. Kellar, 33 Ohio St. 554. ° Taylor v. Curry, 109 Mass. 36; see §§ 41, 51. « Loomis V. Monry, 15 N. Y. S. C. 313 (1876). ' Borden t. Clarke, 36 Mich. 413; Miller v. Finley, 26 Mich. 355. Campbell, J. : " Whatever may have been the experience of our people with itinerant patent vendors, it cannot be properly assumed as a fact that a patent regularly issued by the department lacks cither novelty or utility. And as fraud can never be pre- sumed without proof, the jury could not properly be charged upon any theory, supported by no evidence at all." 654 RIGHTS OF A BONA FIDE HOLUEE. good faith for value, and before maturity, knew that the maker was dead, but did not know it was made for accom- modation, may recover on it against the maker's estate, even if the indorser for whose accommodation it was made, put it into circulation fraudulently as against the maker. And it will be assumed that he did not know it was made for accom- modation.^ A father who bousht a note of his daughter, who told him that her betrothed had given it to her, has been held a hona fide holder.^ § 799. Particular and general notice. — It is quite clear and well settled that the purchaser need not have notice of the particular fraud, or equity or illegality, in order to be affected by it. It is sufficient that there be notice, actual or constructive, that there is some fraud, or equity or illegality affecting the original parties. "Thus, if when he took the lull he were told in express terms that there was something wrong about it, without being told what the vice was, or if it can be collected by a jury, from circumstances fairly war- ranting such an inference that he knew, or believed, or thought that the bill was tainted with illegality or fraud, such a general or implicit notice will equally destroy the title." " So if he knows that the maker denies his liability or refuses to ackno^vledge it.* § 800. Piihlic records. — Parties negotiating for negotiable instruments are not bound to take notice of public records, and litigations, which would affect them with notice were they dealing with the suliject-matter. And therefore when there is nothing on the face of the bill or note to give notice of any defects, the fact that a deed of trust securing its pay- ment contains recitals which show that equities or offsets exist between the original parties does not weaken the posi- tion of a lona fide holder without actual notice.^ And if it be not overdue, the fact that it was in litigation at the time of transfer does not affect the transferee's rig'hts : nor will a ' Clark V. Thayer, 105 Mass. 217. = Benoin v. Paquin, 40 Vt. 199. ' Bylea (Sharswood's ed.) [*119] 228; citing Oakley v. Ooddeen. ' Boyce v. Geyer, 2 Mich. N. P. 71. ' Minell v. Read, 26 Ala. 736. WHAT IS MEANT BY "PURCHASER WITHOUT NOTICE." 655 decree when rendered, as a general rule, affect them, the doc- trine of Us pendens not applying to negotiable instruments.^ But when transferred overdue pending litigation, it is subject to the issue of the suit, as it is then subject to all equitable defenses.^ There is this also to be specially noted : If under the laws of the State where the note is payable, the defendant is compelled by due process of law to pay the note to an- other party — aven though the plaintiff be a bona fide holder without notice — he cannot recover. This not unfrequently happens when the maker is compelled by garnishee or trustee process to pay the amount of the note to a creditor of the payee ; and in such case an indorsee of the payee cannot recover of the maker notwithstanding he acquired the note for value before maturity.' Mere proof of an advertisement in a ne^'\'spaper cautioning parties against purchasing a bill or note, even when made in the place of residence of the pur- chaser, it is not sufficient itself to show notice on his part of any fraud affecting its validity.* § 801. Notice of . fraud, or defect of title, or of defense valid between prior parties may be derived from circum- stances, and be as effectual as personal observation, or hear- ing of the facts in question. Thus where the assignee of a note, at the time of assignment, requests and receives, as security from the transferj-er, a conveyance of land for the purchase money of which the note is given, with a provision in the deed that the assignee is to comply with the terms of the contract of sale to the prior purchaser, the assignee will be chargeable with notice of the character of the note.'* § 802. Notice to agent. — It is a general principle of law that notice to an agent is notice to the principal, and there- ' Day V. Zimmerman, 68 Penn. St. ; Hill v. Kraft, 29 Penn. St. 186 ; Wintons V. Westfeldt, 23 Ala. 760; Kellogg v. Fanclier, 23 Wis. 31; Be Great Western Tel. Co. 5 Biss. 353. = Kellogg V. Fancher, 33 Wis. 21. = Simon V. Huot, 15 N. Y. S. C. (8 Hud), 378 (1876), See also Hull v. Blake, 13 Mass. 153 ; Meriam v. Riindlett, 13 Pick, oil ; Trubee v. Alden, 13 N. Y. S. C. (6 Hun), 75 ; 3 Parsons on Cout. 606-608. * Kellogg V. French, 14 Gray, 354. " Packwood v. Gridley, 39 111. 383. 656 EIGHTS OP A BONA FIDE HOLDER. fore If the holder in taking the bill employs an agent, though lie be unaffected with notice to himself personally, yet no- tice to the agent so employed, express or implied, is notice to the holder.^ And notice to a subagent whose appointment has been authorized by the principal is equally notice to the principal.^ But this rule is subject to the qualification that the knowledge of the agent, in order to affect his principal, should either have been acquired in the same transaction, or at least so recently as that it may be presumed to have re- mained in his memory ; and it must be knowledge of a fact material to the transaction, and which it would be the duty of the agent to communicate to his principal.^ That the prin- cipal is bound by such knowledge or notice as his agent ob- tains in negotiating the particular transaction is everywhere conceded. Constructive notice to an agent is not to be ex- tended.* SECTION YI. •WHEN PUECIIASEE OE HOLDER STANDS ON SAME FOOTING AS HIS TEANS- FEEEEE. § 803. We have seen under what circumstances the pur- chaser of a negotiable instrument may acquire a better right and title than his ti-ansferrer. It is to be observed further, that, as a general rule, the purchaser can never be placed on a worse footing than his transferrer, although he himself could not in the first instanc* have acquired the vantage ground oc(;u- pied by such transferrer. And, therefore, even if he have notice that there was fraud in the ince^Dtion of the paper, or that it was lost or stolen, or that the consideration has fiiiled ' Livermore v. Blood, 40 Mo. 48; Lawrence v. Tucker, 7 Greenl. 11)5; Bank V. Whitehead, 10 Watts, 397; Geer v. Higgins, 8 Kan. 520; Wiley v. Knight, 37 Ala. 336; Varnum v. Milforcl, 4 McLean, 93; Patten v. Merchants' Ins. Co. 40 N. H. 375; 3 Kent Com. [*630], 849; Angell and Ames on Corporations, 347; Byle3 on Bills (Sharswood's ed.) [*120], 226, 237; Story on Agency, § 140. ' Boyd V. Vanderkemp, 1 Barb. Ch. Kep. 373. = The Distilled Spirits, 11 Wall. 366 (1870). ' Wyllie V. Pollen, 33 L. J. Cli. 783. "WHEN PURCHASER STANDS SAME AS TRANSFERRER. 657 between some anterior parties, or the paper be overdue and dishonored, he is, nevertheless, entitled to recover, provided his immediate indorser was a bona fide bolder for value un- affected by any of these defenses. As soon as the paper comes into the hands of a holder, unaffected by any defect, its character as a negotiable security is established ; and the power of transferring it to others, with the same immunity which attaches in his own hands, is incident to his legal right, and necessary to sustain the character and value of the instrument as property, and to protect the bona fide holder in its enjoyment.^ To prohibit him from selling as good a right and title as he himself has, would destroy the very ob- ject for which they are secured to him — ^would indeed be paradoxical. And it has been justly said that this doctrine " is indispensable to the security and circulation of negotiable instruments, and is founded on the most comprehensive and liberal principles of public policy." ^ Nor is it a hardship to the maker or acceptor of the instrument. For, as said by Beck, C. J., in Iowa : '" The maker of the note would be liable to the transferrer ; his condition is made no harder by the note coming into the hands of one having notice of its infirm- ities."* Like principles prevail in courts of equity in re- spect to parties acquiring defective titles to estates.* ' Commissioners v. Clark, 94 U. S. (4 Otto), 385 ; Kiley v. Schawhacker, 50 Ind. 592; Cromwell v. County of Sac, 96 U. S. (6 Otto), 51 ; Hoffman v. Bank of Milwaukee, 13 Wall. 181; Hereth v. Merchants' National Bank, 34 Ind. 380; Mornyer V. Cooper, 35 Iowa, 357; Simonds v. Merritt, 33 Iowa, 537; Peabody V. Rees, 18 Iowa, 571 ; Howell v! Crane, 13 La. Ann. 136 ; Hascall v. Whitmore, 19 Me. 103; Smith v. Hiscock, 14 Me. 449; Woodman v. Churchill, 53 Me. 58; Roberts v. Lane, 64 Me. 108; Hogan v. Moore, 48 Ga. 156; Woodworth v. Hun- toon, 40 111. 131; Cotton v. Sterling, 10 La. Ann. 382; Bassett v. Avery, 15 Ohio St. 399 ; Boyd v. McCami, 10 Md. 118; Watson v. Flanagan, 14 Tex. 354; Pren- tice V. Zane, 2 Grat. 363; Haly v. Lane, 3 Atk. 183; Robinson v. Reynolds, 3 Q. B. 196 ; Lickbarrow v. Mason, 2 T. R. 63 ; Chalmers v. Lanier, 1 Camp. 383; Cook T. Larkin, 10 La. Ann. 507; Masters v. Ibberson, 18 L. J. C. P. 348; 8 C. B. 100 (65 E. C. L. R.); Roscoe on Bills, § 111; Kyd. 377; Byles (Sharswood's ed.) 336, 255; Johnson on Bills, 80; see ante, §§ 726, 783, 786. ' Story on Promissory Notes, § 191 ; see also Story on Bills, 188 ; 1 Parsons, N. &B. 161. ' Simon V. Merritt, 33 Iowa, 537. * Story's Eq. .luris. §§ 409, 410. Vol.. L— 43 058 RIGHTS OF A BONA FIDE HOLDER, § 804. As illustrations of this doctrine, it has been held in Louisiana, where the courts held that Confederate notes were an illegal consideration, that the purchaser for value of a negotiable note given for a loan of Confederate money, could recover against the maker, notwithstanding he knew the nature of the consideration when he took it — the party who transferred it to him having acquired it bona fide, and without such notice.^ So in Indiana, the plaintiff, who knew when he acquired the note that the defendant was induced by fraud to give it for a worthless patent, was held entitled to recover, his immediate indorser not having possessed such knowledge when he acquired it.^ § 805. But this rule is subject to the single exception that if the note were invalid as between maker and payee, the payee could not himself by purchase from a lona fide holder, become a successor to his rights ; it not being essen- tial to such bona fide holder's protection to extend the prin- ciple so far/ And the like exception is made by courts of eijuity in determining the rights of persons having defective titles to estates.* If the payees of the note were the agents ' Cotton V. Sterling, 20 La. Ann. 282. ^ Hereth y. Merchants' National Bank, 34 Ind. 380. ' Sa-wyer v. Wisw.ell, 9 Allen, 43 ; Kost v. Bender, 25 Mich. 516 (1873), Oooley, J. : "I am not aware that this rule has ever been applied to a purchase by the original payee, nor can I perceive that it is essential to the protection of the innocent indorsee, that it should be. It cannot be very important to him, that there is one person incapable of sueeeeding to his equities, and who conse- quently would not be likely to become a purchaser. If he may sell to all the rest of the community, the market value of his security is not likely to be af- fected by the circumstance that a single individual cannot compete for its pur- chase, especially when we consider that the nature of negotiable securities is such that their market value is very little influenced by competition. Nor do I perceive that any rule or principle of law would be violated by permitting the maker to set up this defense against the payee, when he becomes indorsee, with the same effect as he might have done before it had been sold at all, or that there is any valid reason against it." Seean?(j, § 176. * In Story's Equity Jurisprudence, §§ 409, 410, it is said : " This doctrine in both of its branches has been settled for nearly a century and a half in England, and it arose in a case in which A. purchased an estate with notice of an incum- brance aud then sold it to B., who had no notice, and B. afterward sold it to C, who had notice, and the quesrion was whether the incumbrance bound WHEN PURCHASER STANDS SAME AS TRANSFERRER. 659 of the real party in interest they could not become the owners of the note so as to be held purchasers without notice of the transaction in which the defense inhered.^ § 806. As to the defenses against which a hona fide holder is not protected. — ^There are some defenses which are as avail- able against a hona fide VfA^^x for value, and without notice, as against any other party. They are those which go to show that the instrument was absolutely and utterly void, and not merely voidable, (1) by reason of the incapacity of the party assuming to contract ; or, (2) by reason of some positive interdiction of law; or (3) by reason of the want of consent of the party sought to be bound to the particular contract. Thus (1) if the maker of the note were an infant, a mar- ried woman, a lunatic, or a person under guardianship, the signature would impart no validity to it, and the hona fide holder could not recover against him, or her, however igno- rant of the incapacity when he took the paper. § 807. (2) So if the statute law pronounces the contract evidenced by the bill or note to be void, because made upon a gambling, usurious, or other illegal consideration, it is an absolute nullity ; and, although in form negotiable, no cur- rency in the market, and no degree of innocence or ignorance on the part of the holder can impart any validity to it.* But although the party executing such bill or note cannot be bound even to a hona fide holder, the indorser will be liable upon his indorsement, which warrants its validity, and is a the estate in the hands of C. The then Master of Rolls thought that although the equity of incumbrance was gone while the estate was in the hands of B., yet it was revived upon the sale to C. Bat the Lord Keeper reversed the decision, and held that the estate in the hands of 0. was discharged of the incumbrance, notwithstanding the notice of A. and C." Harrison v. Firth, Prec. Oh. 61. ' Boit V. Whitehead, 50 Ga. 76. "" Town of Eagle v. Kohn, 84 111. 393; Hatch v. Burroughs, 1 Woods, 439; Bayley v. Taber, 5 Mass 386 ; Aurora v. West, 33 Ind. 88 ; Vallett v. Parker, 6 Wend. 615; Taylor v. Beck, 3 Raud. 316; Weed v. Bond, 31 Ga. 195; Hall V. Wilson, IS Barb. 548; Ramsdell v Morgan, 16 Wend. 574; see ante, §§ 107, 198. G60 EIGHTS OF A BONA FIDE H0LD3R. separate and independent contract.^ And in many localities negotiable instruments executed upon gaming or usurious ^ considerations are upon the same footing as those executed for other illegal considerations — that is, void between the parties, but valid in the hands of a honafide holder. § 808. Sometimes the statute declares a note void only as between original parties, and in such cases the bona fide purchaser is not affected by the illegality ; ^ and when the instrument was executed upon an illegal consideration, especially if illegal by statute (but not absolutely avoiding the instrument), it throws upon the holder the burden of proving bona fide ownership for value.* But a failure of consideration does not throw this burden upon him.^ And in all cases where the statute does not declare the instrument void, bona fide ownership for value being proved, tbe holder is entitled to recover.^ § 809. (3) So where the party has never in fact signed the instrument as it then stands, as, for instance, where it was forged in its inception, and is not genuine,'' or was sub- sequently materially altered.^ In such cases the bona fide holder cannot enforce it, for the defendant has only to say : " This is not my contract," " non Tiobg in fcedera venV So if executed by one acting as agent of the principal, but exceed- ing his authority, the bona fide holder cannot recover unless the principal were in fault in inducing him to believe that ' See ante, % 671 et seq. ' Haight v. Joyce, 3 Cal. 64. ' Paton V. Coit, 5 Mich. (1 Cooley), 505 ; see ante, § 198. " Paton V. Coit, 5 Mich. (1 Cooley), 505 ; Wyat v. Campbell, 1 Mood. & M. 80; Bailey v. Bidwell, 13 Mees. & W. 74; Northam v. Latouche, 4 Car. & P. 140; Harvey v. Towers, 6 Exch. 656 ; Smith v. Braine, 16 Q. B. 201 ; Fitch v. Jones, 32 Eng. L. & Eq. 134; Vallett v. Parker, 6 Wend. 015; Story on Bills, § 193; Doe V. Burnham, 11 Fost. 426; Johnson v. Meeker, 1 Wis. 436; Norris v. Lang- ley, 19 N. H. 423; Bottomley v. Goldsmith, 36 Mich. 37. " Wilson V. Lazier, 11 Grat. 478, and cases cited; see ante, §§ 165, 198, and post, § 810 «f seq. " Williams v. Cheney, 3 Gray, 215; Hubbard v. Chapin, 3 Allen, 338; Story on Promissory Notes, § 193. ' See Chapter XLII, on Forgery, Vol. 3. ° See Chapter, XLHI, on Alteration, Vol. 3. BURDEN OF PKOOF AS TO BONA MDB OWNERSHIP. 661 the agent had authority.^ So if the party signed under duress he would not be bound.^ SECTION VI [. THE BURDEN OF PROOF AS TO BONA FIDE 0WNEE8HIP. § 810. We come now to consider how the holder of a negotiable instrument must proceed to establish his right to a recovery against the parties thereto. And first, it is to be observed that as between him and his immediate predecessor, or party between whom and himself a privity exists, he stands upon the same footing as the payee of a note against the maker. Fraud, illegality, want or failure of considera- tion may be pleaded against him by such immediate party as freely as if the instrument were not negotiable ; and the only difference is, that the negotiable instrument imports a valid consideration not only as between the original parties, but also as between the immediate parties to its transfer, and that the burden of proof devolves upon the party who impeaches such consideration.^ § 811. As to anterior parties to the transfer of the instru- ment, the rule is, as between them on the one part and the holder on the other, altogether different. They are not in privity with him, and they cannot set up against him de- fenses which might be valid as between them and any party prior to him, unless he is affected by such defenses through 'malafides^ notice, or otherwise having taken the paper with- out value, or without the usual course of business; which circumstances have been already discussed. But still, cir- cumstances of defense, valid as against prior parties, may affect his position in respect to the measure of proof neces- sary to establish that he is not affected by them. And the ' Andover Bank v. Grafton, 7 N. H. 298; Weathered v. Smith, 9 Tex. 623; Fearn v. Filica, 7 Man. & G. 514; The Floyd Acceptance, 7 Wall. 636. ' See Chapter XXVl, Section VIII. ' See ante, Chapter Vll, on Consideration, Sec. I. 662 RIGHTS OF A BONA FIDE HOLDER. coui'se of legal procedure in presenting such proof may be stated to he as follows : § 812. First. The mere possession of a negotiable instru- ment, produced in evidence by the indoi'see, or by the as- signee where no indorsement is necessaiy, imports prima facie that he acquired it bona fide for fall value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity ; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instru- ment and proof that it is genuine (where indeed such proof is necessarj^, prima facie establishes his case ; and he may there rest it.^ Bills and notes payable to bearer do not differ in this respect from others, and the bearer is entitled to all the presumptions that apply to an indorsee in his favor.^ But the presumption of bona fide ownership does not apply where the instrument is not payable to bearer, unless it be indorsed specially to the holder, or in blank.^ The holder, however, could not recover against subsequent parties, as his possession of the bill or note would be pritna facie evi- dence that he had paid it to some subsequent party, to whom he was liable. Therefore, where A. brought suit against B. on a note made by C. payable to A., and by A. indorsed to B., and by B. indorsed back to A., it was held A. could not recover against B.^ But special circumstances, showing that it had been indorsed back to A. for a valid consideration, would enable him to recover against B.° And if a prior in- dorser offered a note for discount on his own account, the transaction would import that the subsequent indorsement was made for the accommodation of the prior indorser, and ' Brown T.SpsfEord, 95 U. S. (5 Otto), 478 (1877) ; Collins v. Gilbert, 94 U. 8. (4 Otto), 753 ; Commissioners v. Clark, 94 U. 8. (4 Otto), 285 ; Vallett v. Parker, 6 Weud. 615; Davis v. Bartlett, 13 Ohio St. 544; Holme v. Earsper, 5 Binn. 469; McCann v. Lewis, 9 Cal. 24C ; Hall v. Allen, 37 Ind. 541 ; Horton v. Bayne, 52 Mo 531 ; Palmer v. Nassau Bank, 78 111. 380. ' Faulkner v. Ware, 34 Ga. 373. 3 See Chapter XXXYII, on Action, vol. 3, Sec. IV; Dorn v. Parsons, 56 Mo, 601. * Palmer t. Whitney, 21 Ind. 61. " Ibid. BUKDEN OF PROOF AS TO BONA FIDE OWNERSHIP. 663 the party discounting it could recover against him.^ Posses- sion of a note by tlie personal i-epresentative of the deceased payee, payable to the decedent, and unindorsed, would be evidence of ovs^nership ; ^ and so possession of a bill by a dravper payable to his own order.^ Possession of a bill or note unindorsed by the payee would not be.* § 813. It is not competent for the defendant to deny that the plaintiff is the owner and holder of a note upon which he brings suit as such, without traversing the signature, the indorsement, or the delivery of the note ; and in such case, evidence is inadmissible to prove that the plaintiff never owned the note, never employed counsel, and had no interest in the suit.® § 814. Second. That countervailing proof that the in- strument was executed without consideration as between the original parties — as, for instance, where it was executed for accommodation as between them, or that the consideration, originally valid, has subsequently failed — does not impair the holder's superiority of position, and he may still rest his case upon the instrument itself, from which it will still be presumed that he acquired it in a manner entitling him to stand upon the vantage ground of a bona fide holder foi' value.^ Nor will proof of mere misapplication of the instru- ' Mauldin v. Branch Bank, 3 Ala. 503. " ScoviUe V. Landon, 50 N. Y. 686. = Merritt v. Duncan, 1 Heiskell, 156. See ante, §§ 781, 753. * Gibson v. Miller, 39 Mich. 355. See ante, § 781 a. ' Way V. Richardson, 3 Gray, 413. " Commissioners v. Clark, 94 U. S. (4 Otto), 385; Collins v. Gilbert, 94 U. S. (4 Otto), 757; Duerson's Adm'r y. Alsop, 37 Grat. 348; Goodman v. Siinonds, 30 How. 343; Bank of Pittsburg v. Xeal, 33 Id. 96; Murray v. Lardner, 3 Wall. 110; Wilson v. Lazier, 11 Grat. 478; Ross v. Bedell, 5 Duer, 4G3; Fletcher v. Cushee, 33 Me. 587 ; Ellicott v. Martin, 6 Md. 509 ; Knight v. Pugh, 4 Watts & S. 445; Grenaux v. Wheeler, 6 Tex. 515; Mathews v. Poythress, 4 Ga.387; Hole- man V. Hobson, 8 Humph. 127; Cook v. Helms, 5 Wis. 107; Magee v. Badger, 34 N. Y. (7 Tiff.) 347; and Belmont Branch Bank v. Hoge, 35 N. Y. (8 Tiff.) 65, overruling Pringle v. Phillips, 5 Sand. 157: Whitaker v. Edmonds, 1 Mood. & R. 366; Mills v. Barber, 1 Mees. & W. 435 ; Low t. Chifney, 1 Bing. K. C. 267 ; Smith V. Braine, 14 Q. B. 244 ; Baxter r. Ellis, 57 Me. 180 ; Story on Bill (Bennett's ed.), § 193 ; Cummings v. Thomson, 18 Minn. 353 (1873) ; Sloan v. Union Bank- G64 RIGHTS OF A BONA FIDE HOLDER. ment, where it has subserved its substantial purpose, shift the burden of proof, as has been already indicated.^ § 815. Third. There may be at this juncture a shifting of the burden of proof from the defendant to the plaintiff, for the principle is well established that if the maker or acceptor, who is primaiily liable for payment of the instru- ment, or any party bound by the original consideration, proves that there was fraud or illegallity in the inception of the instrument; or if the circumstances raise a strong sus- picion of fraud or illegality, the owner must then respond by showing that he acquired it bona fide for value, in the usual course of business, while current, and under circum- stances which create no presumption that he knew the facts which impeach its validity. This principle is obviously sal- utary, for the presumption is natural that an instrument so issued would be quickly transferred to another; and unless he gave value, which could ' be easily pi'oved if given, it would perpetrate gi-eat injustice, and reward fraud to permit him to recover.*^ " In the nature of things '" it is remarked ing Co. 67 Penn. St. 479; Davis v. Bartlett, 12 Ohio St. 537 (1831); Grocers' Bank v. Penfield, 14 N. Y. S. C. (7 Hun), 379 ; Mechanics', &c. Bank v. Crow, 00 N. Y. 85. See ante, §§ 16.") et seq. ' Ante, §§ 790, 791; Holme v. Karsper, 5 Binn. 469, Tilghman, C. J., saying: " In the first instance, it is presumed that every man acts fairly. It lies on the de- fendant, therefore, to show some probable ground of suspicion, before the plaint- iff is expected to do anything more than produce the note on which he founds his action. But this being done, it is reasonable that the holder should be called on to rebut the suspicions. All that is asked of him is to show that he acted fairly, and paid value." " Commissioners v. Clark, 94 U. S. (4 Otto), 285; Collins v. Gilbert, 94 U. S. (4 Otto), 761; Duerson v. Alsop, 27 Grat. 249; Fitch v. Jones, 32 E. L. & Eq. 134; Smith v. Braine, 3 Id. 380; 10 Q. B. 344: Smith v. Sac County, 11 Wall. 139; McClintick v. Cummins, 2 M'Lean, 98; Vathir v. Zane, 6 Giat. 246; Hut- chinson V. Bogg, 28 Penn. St. 394; Perrin v. Noyes, 89 Me. 384; Sistermans v. Field, 9 Gray, 331; Woodhull v. Holmes, 10 Johns. 2:J1 ; McKesson v. Stanberry, 8 Ohio, N. S. 156; Thompson v. Armstrong, 7 Ala. 256; Ross v. Drinkard, 35 Ala. 434; Devlin v. Clark, 31 Mo. 22; Kelly v. Ford, 4 Iowa, 140; Hall v. Peath- erstone, 3 Hurl. & N. 284; Bailey v. Bidwell, 13 M. & W. 73 ; Story on Bills, § 193; Byles on Bills (Sharwood's ed.) 222; Perkins v. Prout, 47 N. H. S87 ; Har- bison V. Bank of Indiana, 28 Ind. 133; Fuller v. Hutchings, 10 Cal. 530: Boyd v. Mclvor, 11 Ala. S22; Horton v. Bayne, 53 Mo. 531; Cummings v. Thompson, 18 BURDEN OF PROOF AS TO BUNA FIDE OWNERSHIP. 665 by Staples, J., in a late Virginia case, " it is impossible to lay down any fixed unvarying rule, as to the circumstances which will be deemed sufficient to throw upon the holder the burden of showing that he has given value for the note. The courts must determine in each whether the transaction is of such a character as to rebut the presumption usually arising from the possession of the instrument." Long delay which continued until the death of an indorser whose estate was sought to be charged, coupled with a variety of peculiar cir- cumstances, was held in the particular case to rebut the pre- presumption in the holder's favor, and to require of him proof that he gave value.^ The holder is not bound, however, to show that he acted cautiously in inquiring into the history of the instrument in proving his hona fides. If the defendant plead that the paper was made on an illegal consideration, and that the plaintiff gave no value, and the plaintiff put the whole plea in issue, it will be sufficient for the defendant to prove the illegality, and the plaintiff must then prove the consideration. And in case of fraud, the burden will be equally cast upon the plaint- iff of proving consideration, if the defendant prove so much of the plea as alleges that he, the defendant, was defrauded of the bill.* § 8 1 6. In Virginia,* it appeared that J. E. Johnson met Platoff Zane in Philadelphia, and induced him to purchase certain lots situated in South St. Louis, an addition to the city of St. Louis, Missouri, Johnson represented them to be of great value, and likely to become a part of that city, and that he could make an unencumbered title to the purchaser. Con- fiding in these representations, Zane executed his promissory notes for about $14,000, and Johnson assigned one of said notes for |652 40 to John L. Vathir, who brought suit upon it, and recovered judgment against Zane. Zane obtained an Minn. 346; Sloan v. Union Banking Co. 67 Penn. St. 470; Roberts v. Lane, 04 Me. 108; Sperry v. Spaulding, 45 Cal. 544; Redington t. Wood, 45 Cal. 406. ■ Duerson's Adm'r v. Alsop, 27 Grat. 349 (1876). = Byles on Bills, 233. ' Vathir v. Zane, 6 Grat. 246. 666 EIGHTS or A BOKA FIDE HOLDEE. injunction to this judgment; and it appeared that Johnson's representations as to the value of the lots were false; and be- sides that, he could make no title to them, it having reverted to the city of St. Louis in default of his payment of the pur- chase money. Said Allen, J.: "As a general rule, the in- dorsement of a negotiable note is of itself, prima facie evidence that the indorsee has paid value for it. But when the payee has procured the note by fraud, this general pre- sumption is rebutted, and the holder cannot recover without proving that he has paid value. The reason on which this exception to the general rule rests is briefly stated by Parke B., in Bailey v. Bidwell, 13 Mees. & Wels. 73 : ' It certainly,' he says, ' has been the universal understanding since the later cases, that if the note were proved to have been obtained by fraud, or afl'ected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it, and would place it in the hands of some other person to sue upon it; and that such proof casts upon the holder the burden of showing that he was a hona fide holder for value.' ^ " Nor is the requisition for such proof confined to cases in which the note was put into circulation by fraud, as where it was lost or stolen. In the case of Rogers v. Morton, 12 Wend. 484, the note was voluntarily given for an assumed balance, on a settlement of accounts. The balance was in part made up by a charge for a draft, of which the creditor was never holder; and proof of this fraud committed on the makers at the time the note was given, was held sufficient to throw upon the plaintifl^s the burden of showing that they were hona fide holders for value." ^ It was held incumbent on Vathir to give proof accordingly to this view. § 817. In another case it appeared that Rector sold to Wilson & Mills, with general warranty, real estate in Wash- ington county, Ohio, and received in part payment the note . jj ' Sec Monroe v. Cooper, 5 Pick. 413; Rogers v. Morton, lii Wend. 484; Holme V. Karspsr, 5 Binn. 409. "" See also Thomas v. Newton, 3 Carr. & P. 606. BURDEN OF PROOF AS TO BONA FIDE OWNERSHIP. 667 of Wilson, which he transferred as a gift to the trustees of Rector College, in Taylor county, "Virginia. Previous to the assignment, Rector had mortgaged the real estate aforesaid to the Ohio Life and Trust Company, and it had been sold, and so the consideration had entirely failed. The trustees of the college assigned the note to Wright & Baldwin, who sold it to William Lazier, who indorsed it to another party, and was sued upop, and paid it. The bill prayed that the contract for the sale of the land might be rescinded, and the note canceled. Daniel, J., said : " There is no evidence of fraud in the origin or negotiation of the note ; and the mere failure of consideration does not impose on the innocent holder the onus of showing the consideration he gave for the note." In note to Chitty on Bills, 10th Am. ed., p. 648, we have a report of the case of Whitaker^v. Edmonds, 1 Mood. &, Rob. 366. In that case, Paterson, J., said : " Since the decision of Heath v. Sansom, 2 Bar. & Ad. 291 (22 Eng. C. L. R. 78), the consideration of the judges has been a good deal called to the subject ; and the prevalent opinion among them is that the courts have of late gone too far in restricting the negotiability of bills and notes. If, indeed, the defendant can show that there has been some- thing of fraud in the previous steps of the transfer of the instrument, that throws upon the plaintiff the necessity of showing under what circumstances he became possessed of it. So far I accede to the case of Heath v. Sansom, for there were, in that case, circumstances raising a suspicion of fraud ; but if T added on that occasion that, even independ- ently of these circumstances of suspicion, the holder would have been bound to show the consideration which he gave for the bill, merely because there was an absence of con- sideration as between the previous parties to the l)ill, I am now decidedly of opinion that such doctrine was incorrect." ^ In England it has been held, that where the drawer of a bill, which he indorsed in blank, delivered it to W. to get it ' Wilson 7. Lazier, 11 Grat. 478. 6G8 EIGHTS OF A BONA FIDE HOLDER. discouuted for him, and W. went oif with the bill promising to get and bring him the money, but never returned with the bill or the money, and the drawer never heard of the bill un- til called upon by H. to pay it, it was held that H. must prove that he gave value in order to recover on the bill.^ § 818. It is to be observed, however, that the fraud which shifts the burden of proof upon the holder of the note, and renders it necessary for Mm to establish hona fide ownership for value, must be a fraud committed upon the maker; and fraud against the payee or any intermediate holder is insufficient.^ § 819. Fourth. That when the holder responds by show- ing that he did acquire the instrument hona fide., for value, in the usual course of business, while it was current, and un- der circumstances which do not operate as constructive notice of the facts which impeach the original validity, the defend- ant must then prove that he had actual notice of such facts ; otherwise the holder's right to a recovery against him is per- fected. This principle is obviously correct, for to require the plaintiff to show absolutely that he had no knowledge of facts would be to burden him with the necessity of proving an impossible negative.^ ' Hall V. Featherstone, 3 Hurl. & Norm. 284; Duerson Y. Alsop, 27 Grat. 249. = Kinney v. Kruse, 27 Wis. 183; see Atlas Bank v. Doyle, 9 R. I. 76. ' Davis V. Bartlett, 12 Ohio St. 541 (1861). In this case, Sutliff, C. J., said: " The case of Monroe v. Cooper, 5 Pick, 412, is also relied upon by the defend- ants in this case as an authority. That was an action by the indorsee upon a ne- gotiable note against the members of a partnership company, by whom the note purported to be made. Two of the three partners appeared, and pleaded the general issue, and, on the trial, offered to prove that the note was made by the other partner, who had made default in the case, for his own benefit, and not for the benefit or on account of the company or with the knowledge of the other partners; but as the defendants did not offer to prove, also, that the note was due when indorsed to the plaintiflF, or that he had knowledge of the facts, the judge, on the trial of the case, was of the opinion that the facts so proposed to be proved did not amount to a defense, and excluded the proof. The Supreme Court, in revising this opinion, by Wilde, J., held that the defendants had the right to prove, if they could, that fraud was practiced in the inception of the note, or that it was fraudulently put in circulation. And the judge adds : ' This fact being established, will throw upon the plaintiff the burden of proof, to show BUEDBN OF PROOF AS TO BONA FIDE OWNEESHIP. 669 tbat he came by the possession of the note fairly and without any knowledge of the fraud.' There can be no doubt that the judgment of the Supreme Court, in tiiis case also, was strictly correct ; and by the burden of proof to show possession of the note fairly and without knowledge of the fraud, be only meant that upon the defendants proving the note to have been fraudulently executed and put in circulation, that it was incumbent upon the plaintiff to prove that he received the negotiable paper before due in the usual course of trade, upon a valuable consideration, the remark of Judge Wilde is strictly correct, and consonant with the authorities to which he refers; but if his remark is to be understood as inti- mating that the rule in such a case imposes any further burden upon the plaintifi' than to prove he purchased and received the transfer of the negotiable paper be- fore due, in the usual course of trade, bona fide, and upon a valuable considera- tion, it is noi only not sustained by, but is opposed to, the authorities to which he refers." CHAPTER XXV. HOLDER OF BILLS AND NOTES TRANSFERRED TO HIM AS COL- LATERAL security; and holder of bills and notks SECURED BY MORTGAGE. SECTION V. EIGHTS AND DUTIES OF IIOLDEE OF A NEGOTIABLE INSTEUMENT AS COLLATEEAL SEOUEITT FOR A DEBT. § 820. Bills and notes are frequently transferred and pledged as collateral secui'ities for debts of the pledgor, and many questions have arisen as to the rights of the various parties concerned in such transactions. And whether or not the indorsee or pledgee becomes a hona fide holder, and is protected against defenses which would be available against the indorser or pledgor, is often difficult to determine. Great contrariety of opinion is found in the decisions on the subject. But by keeping in view a few well fixed principles, we think that every case which can arise may be satisfactorily solved. § 821. In i}iQ first place, it should be determined whether or not the party holding the instrument has the form of the legal title. If the instrument be transferable by delivery (by being payaljle to bearer, or bearing an indorsement in blank), he is then its ivima facie proprietor and owner. If it be payaV)le to order and unindorsed, he then holds only the equitable title, and cannot claim the rights of an indorsee.^ § 822. In the second place, if the holder be an indorsee, or a transferee by deliveiy of a bill or note payable to bearer, let it be ascertained whether or not he is merely the agent of the real owner or has himself an interest in the instru- ' See ante, ?§ 741 et seq. HOLDER OF INSTRUMENT AS COLLATERAL SECURITY. 671 ment ; whetlier or not he has a bare authority or an authority coupled with an interest. If he were only authorized to collect the proceeds for the indorser, or transferrer by de- livery, and then to apply the proceeds to the payment of a debt due to himself, this would not give him an interest in the paper itself. It would be much the same as if he were to apply the proceeds to the payment of some other debt due from the principal ; nor could he have the rights of a principal instead of agent, unless there has been an actual assignment to him.^ For if he is agent of the owner, any defense available against the owner is available against him ; and this even in the case where the owner owes his agent more than the amount of the paper.** § 823. If it turn out that the holder is agent, the prin- cipal may revoke that agency at anytime and recall the paper from his hands. And he cannot set up then, as we have seen, any better right than his principal. The test question then is simply this: has there been a change in the legal rights of the parties? If so the transfer is irrevocable with- out the holder's consent. If so there has been a considera- tion for the transfer — either of damage to the holder, or of benefit to the transferrer. And if so the holder is a pledgee and bona fide proprietor of the paper, and is entitled to re- cover upon it even against those who might have made a de- fense against his pledgor — at least to the extent of the debt of which the instrument is collateral security. In California, where, by the provisions of the law in force, the right to proceed against a debtor by attachment was for- feited by taking such a collateral, the pledgee of a negotiable instrument was held to be, by that circumstance — if none other — a holder for value, and protected against equitable defences.* We will now enter more minutely into the various rami- ' 2 Parsons N. <& B. 42, 43. ' Solomons v. Bank of England, 13 East, 135, note; Lowndes v. Anderson, 1 Rose, 99. ' Naglee v. Lyman, 14 Cal. 4o5 ; Payne v. Bensley, 8 Cal. 2G0. 672 BILLS AND NOTES AS SECURITY, AND SECURED. fications which this question assumes, applying the test above stated. § 824. (1) In the first place, as to collateral for debt con- tracted at the fome.— When the bill or note of a third party, payable to order, is indorsed as collatei'al security for a debt contracted at the time of such indorsement, the indorsee is a honafide holder for value in the usual course of business, and is entitled to protection against equities and offsets and other defenses available between antecedent parties— provided, of course, that the bill or note transferred as collateral security is itself at the time not overdue. And the same principle applies where the collateral bill or note is payable to bearer, and is transferred to the creditor by delivery. This doctrine rests upon clear grounds. There is an evident present con- sideration for the transfer of the collateral bill or note; a present change in the legal rights of the parties. And the text-writers, supported by an almost unbroken train of de- cisions, agree that the indorsee is entitled to protection to the extent of the debt secured.^ § 825. (2) In the second place, as to collateral for debt not yet due. — When the debt is not yet due and the collateral bill or note is indorsed as security, and there is an agreement for delay until the collateral shall mature, such agreement by the creditor constitutes a consideration and makes him a holder for value. If the collateral had its maturity fixed at a time later than the maturity of the debt, there would be no implied agree- ment for delay, because the occasion for delay would not have arisen. And the presumption would be that the in- dorsement of the collateral was merely intended to add by ' Bowman v. Van Euren, 29 Wis. 319; Lyon v. Ewing, 17 Wis. 70 (1863); Curtis V. Mohr, 18 Wis. 619 (1864); Jenkins v. Schaul), 14 Wis. 1; Slotts t. Byers, 17 Iowa, 303; Griswoldv. Davis, 31 Vt. 390 ; Ctiicopee Bank v. Ghapen, 8 Mete. 40 ; Louisiana State Bank v. Gaennie, 21 La. Ann. 551 ; Munn v. McDonald, 10 Watts, 270; Williams v. Smith, 2 Hill, 301; Ferdon v. Jones, 3 E. D. Smith, 106; Bank of New York v. Vanderhorst, 32 N. Y. 553 ; Watson v. Cabot Bank, 5 Sand. 423; State Savings Associations v. Hunt, 17 Kan. 532 ; Mechanics' Aes'n V. Ferguson, 29 La. 549. HOLDER OF raSTEUMBJTT AS OOLLATBRAX. SECURITY. 673 its security to the assurance that the debt would be paid. This presumption would be all the stronger if the collateral matured before the deht. And it has led to the opinion that such an indorsee would not be a holder for value. " If," says Redfield, C. J., in Atkinson v. Brooks/ " one holds a debt due six months hence, and his debtor, as a mere volunteer service, indorses a current note or bill as collateral security, the collateral being due in three months, it could not be made to appear that such transaction, before the indorsee had been at any pains in the matter, was a contract upon con- sideration. The prior debt not being due, the creditor could forego nothing, and the debtor receive no advantage from the transaction. And the agreement to apply the collateral upon a debt not yet due — being without consideration — would probably, in the first instance, be revocable at will ; and so also as long as the parties remained in the same situa- tion." § 826. This reasoning is wrong, but withal, does not seem to us conclusive. If it is the intention of the debtor to trans- fer the title to and property in the instrument at the time when he so makes it collateral security, we should say that the pre-existing indebtedness would be a sufficient considera- tion. It is well established that a transfer of a bill or note in payment of a pre-existing debt is upon a sufficient con- sideration if made when the debt is due, and we can see no good ground for distinguishing the two cases. When the indorsee receives title to the collateral, he has imposed upon him the strict responsibilities and duties of a holder. If he fails to take due steps for the collection of the paper by making prompt demand, and giving notice of dishonor, the indorsers are discharged, and the loss pro tanto of the debt secured devolves upon him.* Besides, he is in the nature of things lulled into security by possession of the collateral, and after transferring it to him we do not think it woald be in the power of the indorser to recall it. A debt barred by limita- ' 26 Vt. 564 (1854) ; soe also Bowman v. Van Kuren, 29 Wis. 218, " Jennison v. Parker, 7 Mich. 355. Vol. I. —43 674 BILLS AKD NOTES AS SECURITY, AND SECUEED. tion is a good consideration for a new promise to pay it ; a retraction of that promise cannot be made. And a debt still current should be esteemed as well a good consideration for a conditional appropriation to its payment by anticipation. Nor is it true that the creditor could forego nothing, and the debtor receive no advantage from the transaction. The latter receives the advantage of shifting the duties and responsibil- ities of holder on the indorsee, and the former, if indeed he actually foregoes nothing, is certainly under inducement to foreco that watchfulness and concern about his debtor which he would otherwise exercise — and even if he foregoes nothing the advantage to the debtor is sufficient. Prior parties cannot justly complain when suit is brought that defenses available against the payee or prior holder are excluded. By the very form of their contract they have put it on the world to cir- culate like cash — barring the gates behind it and shutting out such defenses. And if the creditor has taken them by their word they — not he — should suffer. The question seems to us ^auply one of intent. If the holder takes the paper only as an agent, he simply steps in the shoes of his trans- ferrer ; b)ut if he takes it as the proprietary holder, he takes its burdens and benefits in full. In New York it is held that something must be paid in money or property, or some subsisting debt satisfied or sus- pended, or some new responsibility incurred, in consequence of the transfer of the paper, in order to protect the purchaser against equities,^ and that receiving the paper as collateral security for a precedent debt is insufficient. 'Bay V. Coddington, 30 Johns. 637; Wardell v. Howell, 9 "Wend. 174. In Grocer's Bank v. Penfiekl, 14 N. Y. S. C. (7 Hun), 281, the payee of notes made for his accommodation indorsed them to a bank lo secure a balance due. The Court held that an agreement for an extension of time was implied ; that the preceding debt was suspended; and that although the bank parted with neither money nor property for the note, it could recover against the maker as a honajide holder for value. Moore v. Ryder, 65 N. Y. 441, Earl, C, saying: "In case the holder has not parted with any value or incurred any binding obligation, or changed his position to his detriment on the faith thereof, he cannot recover therein against the party wronged or defended." HOLDER O^ raSTRXJMENT AS COLLATERAL SEOUEITY. G75 § 827. (3) In (lie third place, when pre-existing debt is no- vated, or other securities surrendered. — In the next place, when a pre-existing debt has matured, and the creditor surrenders se. curities formerly held and receives the collateral bill or note in their stead ; or the debtor renews the debt by executing a new bill or uote and transfers the collateral bill or note as security to the creditor — then the latter receives it in the usual course of business upon a present consideration, and is a bona fide holder in the full sense of the term. A leading case on this point is that of Groodman v. Simonds.^ There it appeared that upon a settlement of a pre-existing debt prior securities were surrendered, and the collateral bill transferred as secu- rity for two new notes, at sixty and seventy-five days respect- ively, their maturity being twelve or fifteen days before the maturity of the bill. Clifford, J., said: "When the settle- ment was made the new notes were given in payment of the prior indebtedness, and the collaterals previously held were surrendered to the defendant, and the time of payment was extended and definitely fixed by the terms of the notes, showing an agreement to give time for the payment of a debt already overdue, and a forbearance to enforce remedies for its recovery; and the implication is very strong that the delay secured by the arrangement constituted the principal inducement to the transfer of the bill. Such a suspension of an existing demand is frequently of the utmost importance to a debtor, and it constitutes one of the oldest titles of the law under the head of forbearance, and has always been con- sidered a sufficient and valid consideration.^ The sun-ender of other instruments, although held as collateral security, is ' 20 How. 343 (1857). In Pennsylvania unless the holder pays something for the bill or note he is not deemed entitled to protection as a lona fide holder for value, and the fact that he renews a debt, and takes the bill or note as collateral security, does not protect him. See Roger v. Keystone Nat. Bank, 83 Penn. St. 348; and cases cited, Cummiugg v. Boyd, 83 Penn. St. 373; Knox v. Clifford, 38 Wis. G51 ; Heath v. Silverthorn Lead Mining Co. 89 Wis. 147. " Etting y. Vanderlyn, 4 Johns. 237; Morton v. Burn, 7 Ad. & El. 19: Baker v. Walker, 14 Mees. & Wels. 465 ; Jennison v. Stafford, 1 Cush. 168 ; Walton v. Mascall, 13 Mces. & Wels. 45.1; Wheeler v. Slocum, 16 Pick. 63. G76 BILLS AND NOTES AS SECURITY, AND SECURED. also a good consideration ; and this, as well as the former proposition, is now generally admitted, and is not open to dispute." ^ It seems now to be agreed, that if there was a present consideration at the time of the transfer, independent of the previous indebtedness, that a party acquiring a negotiable instrument before its maturity as a collateral security to a pre-existing debt, without knowledge of the facts which im- peach the title as betweeen the antecedent parties, thereby becomes a holder in the usual course of business, and that his title is complete, so that it will be unaffected by any prior equities between other parties — at least to the extent of the previous debt for which it is held as collateral.^ And the better opinion seems to be in respect to parol contracts, as a general rule, that there is but one measure of the sufficiency of a consideration, and consequently whatever would have given validity to the bill as between the original parties is sufficient to uphold a transfer like the one in this case. We are not aware that the principle, as thus limited and quali- fied, is now the subject of serious dispute anywhere, and that is amply sufficient for the decision of this cause. Whether the same conclusion ought to follow where the transfer was without any other consideration than what flows from the nature of the contract at the time of delivery, and such as may be inferred from the relation of debtor and creditor in respect to the pre-existing debt, is still the subject of earnest discussion, and has given rise to no small diversity of judicial decision. It seems it is regarded as sufficient in Eno-land, ac- cording to a recent case.® A contrary rule prevails in New ' Dupeau v. Waddington, 6 Wbar. 330; Hornblower v. Prond, 2 Bam. & Aid. 337; Hideout V. Bristow, 1 Cromp. & Jer. 231; Bank of Salina v. Babcock, 21 Wend. 499; Youngs v. Lee, 2 Kern. 551. ' White V. Springfield Bank, 3 Sand. (S. C.) 222 ; New York M. Iron Works V. Smitb, 4 Duer, 362. = InPoirier v. Morris, 20 Eng. L. & Eq. 103, Lord Campbell, C. J., said: " There is nothing to make a difference between this and a common case where a bill is taken as security for a debt, and in that case an antecedcjnt debt is a suf- ficient consideration." Crampton, J., said: "Whether the bill was a collateral HOLDER OP INSTRUMENT AS COLLATERAL SECURITY. 677 York, according to several decisions, and also in Tennessee.^ It is settled that it is a sufficient consideration in Massachu- setts, Vermont and New Jersey ; and such was the opinion of the late Justice Story, in Swift v. Tyson, and in his valua- ble treatise on " Bills of Exchange." ^ § 828. In a recent English case^ where the defendant in- dorsed to the plaintiff a bill, of which he was indorsee, as collateral security for a debt of greater amount, then due, the residue of which he paid in cash, and the plaintiflF failed to make presentment or to give notice, it was held that he had lost recourse upon his indorser, both upon the bill and upon the original debt. Byles, J., said : " That as they had the rights, so they had the duties of holders." Willis, J., said : " The bill may be taken for or on an account of the debt, but with an understanding that the party receiving it is to have the option of suing for the debt before the maturity of the bill." Adopting the view of Byles, J., we might say as well, that " as the indorsee has the duties, so he has the rights of a holder." And as those duties, as indicated by Willis, J., do not depend upon whether or not there is a suspension of the original debt, neither should the rights of the holder turn upon that question. § 829. (4) In tJie fourth place, wTien there is no novation of preexisting debt, and no securities surrendered. — ^When the security, or whether it haa the effect of suspending the payment of the antecedent debt, is quite immaterial." ' Coddington v. Bay, 20 Johns. 637 ; Stalker v. McDonald, 6 Hill, 93 ; Napier V. Elam, 5 Yerg. 108. = Stoddard v. Kimball, 6 Cush. 469 ; Story on Bills, § 193 ; Chicopee Bank v. Chapen, 8 Mete. 40; Blanchard v. Stevens, 3 Cush. 162; Atkinson v. Brooks, 26 Vt. 569 ; Allaire v. Hartshorne, 1 Zab. 665 ; Prentiss v. Graves, 33 Barb. 631 ; Ontario Bank v. Worthington, 12 Wend. 593; Prentice v. Zane, 3 Grat. 262; Bertrand v. Barkman, 8 Eng. (Ark.) 150; Cullum v. Branch Bank, 4 Ala. £1; Roxborough v. Messick, 6 Ohio St. 443; Cook v. Helms, 5 Wis. 107; Payne v. Bensley, 8 Cal. 260; Park Bank v. Watson, 3 Hand, 490 (42 N. Y.) ; Brown v. Leavitt, 31 N. Y. 113 ; Penby v. Pritchard, 2 Sand. 151 ; Ayrault v. McQueen, 33 Barb. 305; Palmer v. Richards, 1 Eng. L. & Eq. 529. ' Peacock v. Purcell, 14 C. B. N. S. 728. (578 BILLS AND NOTES AS SECURITY, AND SECURED. pre-existing debt has fallen due, and there is no novation of it l)y the execution of a new security, and no surrender of other securities held for its payment, the question whether or not the bill or note then transferred as collateral is received upon a consideration in the usual course of business, may be more difficult of solution. If there is, then, an express agreement on the part of the creditor to forbear suit until the collateral should mature, or until he should have endeavored to realize from it, there is no doubt tliat the case would then come within the principle of Goodman v. Simonds, and that the agreement to delay would constitute the transferee, a holder for value in the usual course of business. And it has been so held in many cases,^ and recognized as a sound principle in others.^ As said by Redfield, C. J. : ^ " The transaction possesses both the cardinal ingredients of a valuable con- sideration ; it is a detriment to the promisee, and an ad- vantage to the promisor. And it is no satisfactory answer to say, that tbe party who takes such bill or note is in tbe same condition he was before. This is by no means certain. He has for the time foregone the collection of his debt, and in such matters time is of the essence of the transaction. And the debtor thereby gains time — it may be more or less — but of necessity, some time is thereby gained; and in such matters this is always accounted an advantage, and is often of the most vital consequence to the debtor." The doctrine was enunciated with great force by Story, J., in Swift V. Tyson,"^ though the question was not there distinctly presented, as it is in the case just quoted. § 830. But when the collateral bill or note is simply indorsed by the debtor to the creditor, who holds his over- due paper, and no express agreement is entered into, the '■ Atkinson v. Brooks, 26 Vt. 574 (1854) ; Manning v. McClure, 36 111. 498 ; Benman v. Millison, 58 111. 36 ; Worcester Nat. Bank y. Cheney, 5 C. Ill, Sept. Term, 1878; The Reporler, Dec. 4, 1S78, p. 710; Paulette v. Brown, 40 Mo. 54 (1867). See ante, § 827. ' Swift V. Tyson, 16 Pet. 1 (1842). " Atkinson v. Brooks, 26 Vt. 574. * 16 Pet. 1. HOLDER OF INSTRUMENT AS COLLATERAL SECURITY. 679 question whether or not the indorsee is a holder for value has been thought to turn upon the question, whether or not there is an implied suspension of the prior deht until the collateral should become due.^ If there is an agreement for forbearance of the prior debt, it is as binding when implied as when expressed in terms ; and in the United States, as well as in England, the doctrine is settled, that the indorsee of the bill or note of a third party, who takes it on account of a precedent debt, takes it by implication as conditional payment, and the antecedent debt is not extinguished but suspended until the bill or note given in conditional payment has fallen due.^ When the new bill or note so received ' Manning v. McClure, 36 111. 489. ^ See Chapter XXXIX, on Conditional and Absolute Payment, vol. 3, sec. 1269 et seq. ; Blanchard v. Stevens, 3 Onsh. 168 (1849). The Court thought that the note was taken in pLU'nient of a pre-existing debt, but said, per Dewey, J. : " If, however, the case had been one of a note taken as collateral security, it is difficult fo]' us to perceive any sound reason for a different result. All of the cases, those of the New York court inclusive, concur in this, that if the party receiving the note, parts with anything valuable, he is entitled to enforce ths payment of the note, irrespective of the equities as between the original parties. But may you not as well show a legal consideration by showing forbearance to act as by show- ing an act done ? A damage to the promisee is all that is necessary to show a consideration for a promise; and ought not the same rule to apply in protection of a note transferred to him ? If the party had not received the note as collateral security, he might have pursued other remedies to enforce the security or pay- ment of his debt. He might have obtained other securities or perhaps payment in money. It is a fallacy to say, that, if the plaintifiFs are defeated in their attempt to enforce the payment of these notes, they are in as good a situation as they would have been if the notes had not been transferred to them. That fact is as- , sumed, not proved, and from the very nature of the case, is matter of entire uncer- tainty. The convenience and safety of those dealing in nogotiable paper seem to require and justify the rule that when a person takes a negotiable note not over- due or apparently dishonored, and without notice, actual or otherwise, of want of consideration or other defense thereto, whether in payment of a precedent debt, or as collateral security for a debt, the holder would have the legal right to en- force the same against the parties thereto, notwithstanding such defense might not have been effectual as between the original parties thereto." In Manning V. McClure, 36 111. 498, Lawrence, J., said: ''It is said that the position of the indorsee, in cases of this kind, is not different from that of a gen- eral assignee for the benefit of creditors. What we have already said shows wherein, in our opinion, the difference consists. In the case of a general assign- ment, there iano ground for presuming forbearance as one of the objects, or any implied agreement to forbear on the part of the creditors. Indeed, these general G80 BILLS AND NOTES AS SBCUKXTY, AND SECURED. falls due, the creditor may bring suit upon the original debt or upon the new bill or note, or upon both, at his election ; so that the new bill or note is a collateral in any case, unless there be an ezpress agreement or a special usage, as in some of the States, that the acceptance of the new bill or note shall, prima facie, extinguish the debt, § 831. But this implication, that the precedent debt is suspended until the maturity of the collateral bill or note, only arises in cases where the latter is equaP or greater in assigntnents are ordinarily made without the wish or knowledge of the creditors, and where the object is not fraud, it is generally to secure an equal distribution of the assets. The assignee is a mere trustee, to collect what may be due the assignor, for the benefit of his creditors. " We have stated why, in our opinion, the equity is with the indorsee, to wit, that by the almost universal usage of the world of commerce, a transaction of this sort is understood by the parties to imply further forbearance on the pre- existing debt, and thus the indorsee is lulled into a false security by means of an instrument which the person sought to be held liable has made and put in cir- culation. " "We have only to add, that the line of decisions which we follow contributes to that stability in negotiable paper which is so important a consideration in a mercantile community. To accomplish this has been the constant tendency of judicial decisions, from the time of Chief Justice Holt to the present day. The value of this stability to commerce is acknowledged by all courts, and by all writers upon mercantile law. It is easy to see how much it strengthens credit and facilitates the multitudinous transactions of a commercial people. '■ We are led, then, by what we consider the equities between the parties, and by the acknowledged policy of giving stability to negotiable paper, to hold that the indorsee of such paper, before its maturity, taking it as payment or security for a pre-existing debt, and without any express agreement, shall be deemed a holder for a valuable consideration, in the ordinary course of trade, and shall hold it free from latent defenses on the part of the maker." See also Worcester National Bank v. Cheney, S. C. Illinois, Sept. Term, 1878, approving the text. Contra, Bowman v. Van Kuren, 29 Wis. 230, Dixon, C. J.: "We forbear to c^cpress any opinion, further than that the mere transfer of the collateral raises no presumption of a stipulation for further time to pay a pre-existing debt, which will operate to defeat the equities of the maker or indorser, as the same existed before the transfer was made; which is all it is necessary to decide in this case." In Tennessee, it is held that the transfer of negotiable paper before maturity as collateral for a mature debt, is not, in the due course of trade, and that if it were paid before such transfer, the holder cannot recover. Richardson v. Rice, S. C. of Tenn. April, 1878; Central Law Journal, vol. 7, No. 12, Sept. 20, 1878, p 225, citing Gosling v. GiifSn, which overrules Vatterlien v. Howell, 5 Sneed. 441. ' See Michigan State Bank v. Leavenworth, 38 Vt. 309. HOLDER OF INSTBUMENT AS OOLLATEEAL SECURITY. 681 amount than the debt which it is given to secure.^ And therefore, where the collateral is less in amount, there cannot be any inferred consideration of forbearance or delay to con- stitute the holder, on that ground, a holder for value. And unless the becoming a party to tbe bill is in itself a con- sideration, the rigbt of the holder, as for value, cannot be sustained. This alone is, in our judgment, sufficient. The maker has sent out a negotiable contract to pay the bearer or indorsee a certain sum. It has been acquired before matu- rity for a valuable consideration, and the burden of fixing the liability of the indorser (if any) assumed. The bolder is naturally lulled into security and inactivity, by crediting the face of the note ; and he should not be made to suffer by the maker for confidence which his own promise created. In Maryland this subject has been fully considered and the views of the text approved.^ In New York, the holder of a ' See Redfield v. Bigelow's Leading Cases, 203. ' Maitland v. Citizens' National Bank, 40 Md. 540 (1874). Alvey. J., after quoting Swift v. Tyson, and tlie New York cases, said : " Subsequently the doc- trine has been mooted in the Supreme Court of tlie United States, upon the theory that the case of Swift v. Tyson did not call for the decision of the broad and comprehensive question, whether the holder of a negotiable note, received simply as collateral security for a pre-existing debt, should be regarded as a holder for value, and, if received iona fide, protected against antecedent equities. In the case of Goodman v. Simonds, 20 How. 3t3, the question was much discussed, and though the facts of that case did not require the expression of a direct opin- ion upon, the subject, yet it is not difHcult to perceive the inclination of the court in favor of the principle of their former decision ; as they take care to fortify it by showing that it is in accordance with the decisions in England, and in many of the States of this country. In the later case of McCarty v. Roots, 21 How. 432, 439, which arose on the indorsement of an accommodation bill, and where the defendant pleaded that the bill has been delivered to the plaintiff by the indorser as collateral security for a pre-existing liability of the indorser, and for no other consideration, upon demurrer to the plea, and the demurrer being sustained by the court below, the Supreme Court held the demurrer properly sustained, and expressly declared that the delivery of the bill to the plaintiff as collateral security for a pre-existing debt, under the decision of Swift v. Tyson was legal, and con- sequently the plaintiff was entitled to recover. The principle, therefore, maybe taken to be established in the Supreme Court, and, indeed, in the entire Federal jurisdiction of the country; as upon commercial questions the State adjudications are not accepted by the Federal courts as binding rules of decision. In this State, there has been no decision of the appellate court, going to the 682 BILLS AND NOTES AS SECURITY, AND SECURED. bill or note indorsed to him as collateral security for a pre-existing debt of the indorser, is not deemed a hona fide extent of maintaining fully the doctrine of the oases in the Supreme Court, to which we have referred. In the case of the Cecil Bank v. Heald, et al., 25 Md. 563, this court held that a hona fide holder of negotiable paper, for value, without notice, will be protected against the antecedent equities existing between the original parties, and that such holder is entitled to protection where he has re- ceived the paper in payment of an antecedent debt, regarding such debt as a val- uable consideration ; and the case of Swift v. Tyson was so far approved, as it declared that the receiving of negotiable paper in payment of a pre-existing debt, is according to the known usual course of trade and business. The court, how- ever, declined expressing any opinion upon the right of a holder of a negotiable instrument received by him as security for a pre-existing debt. The case of Miller v. The Farmers' and Mechanics' Bank of Carroll Co., 30 Md. 393, has been relied on by the counsel of defendants, as maintaining a doc- trine somewhat in variance with that maintained in Swift v. Tyson. But we are not of that opinion. The case of Miller v. The Bank was the ordinary case of a bank asserting its lien upon security in its hands for the payment of balances due from its customers. According to the law of the land, the bank, a kind of factor in pecuniary transactions, was entitled to a lien upon all the securities for money of its customers in its hands for its advances to such customers, in the ordinai'y course of business, without reference to the true ownership of such securities, if the bank was without knowledge upon the subject (Davis v. Bowsher, 5 T. R. 488 ; Collins v. Martin, 1 B. & P. 648 ; Barnett v. Brandao, 6 M. & Gr. 630) ; and the question was, whether the bank had received the note from its customer in its usual course of dealing, withovit notice of the true ownership, and whether any credithad been given on the faith of it. There being, then, no adjudication in the State to restrict the application of the principle as maintained in the decisions of the Supreme Court to which we have referred, we have no hesitation in giving to it our full approval; believing it to be supported by reason and the usual and ordinary course of dealing in the commercial community, as well as by a decided preponderance of judicial author- ity. Indeed, so well established is the principle, as applicable to accommodation paper, that we find Mr. Parsons, in his works on Notes and Bills, Vol. I, p. 326, stating that it is universally conceded, that the holder of an accommodation note, without restriction as to the mode of using it, may transfer it, either in payment or as collateral security for an antecedent debt, and the maker will have no de- fense. See also Lord v. Ocean Bank, 20 Peun. St. 384. Applying the principle just stated to the case before us, and there can be no doubt of the sufficiency of the consideration for the transfer of the note to the plaintiif, whether it was as collateral security for a pre-existing or a contempora- neous debt, or to secure future discounts or advances, or all combined. In either case, the consideration would be valuable in the sense of the rule which protects the holder of negotiable paper, and the plaintiff be entitled to the full benefit of the security, unless mala fiiles^ or notice of such facts as will impeach its title to the note, be shown. And this brings us to the consideration of the second ques- tion, raised by the prayers of the defendant. HOLBBE OF INSTRUMENT AS COLLATEKAL SECURITY. 683 holder, entitled to full protection, unless an agreement for forbearance be proved.^ § 832. Amount and mode of recovery. — When it appears that the bill or note was acquired by the holder as collateral security for a debt, and he is deemed entitled to recover upon it, he is still limited to the amount of the debt which it secures, if there be a valid defense against his transferrer, be- ing regarded as, at all events, a hona fide holder, and entitled to stand upon a better footing only jiro tanto? Thus such a holder could recover against an accommodation party no more than the consideration actually advanced ; ^ but in the absence of proof he will be deemed to have advanced the full amount of the paper.* In Maryland, however, it has been said in re- spect to an accommodation note, which was transferred as collateral security merely: "Such being the case, it was clearly incumbent upon the plaintiff to show what debts were embraced by the security, and the amount due thereon."^ Although the debt secured by the collateral be less in amount, yet if there be no defense to the collateral note, the holder may in general recover the full amount." If the paper has been pledged to a bona fide pledgee in fraud of the true owner, as the pledgee has only a lien for the amount of his debt, the true owner may, by paying that debt and discharging the lien, repossess himself of the instrument.^ There is no doubt, we think, that if the paper be indorsed, that in payment of a pre-existing debt, the purchaser is pro- ' Merchants' Nat. Bank v. Comstook, 55 N. Y. 34 ; Atlantic Nat. Bank v. Franklin, 55 N. Y. 338; see ante, § 836. ' Vallettc V.Mason, 1 Smith (Ind.) 89; Williams v. Smith, 3 Hill. 301 ; Allaire V. Hartshorne, 31 N. J. L. R. 665; Duncan & Sherman v. Gilbert, 30 N. J. L. R. (5 Dutch.) 527; Fisher v. Fisher, 98 Mass. 803; Stoddard v. Kimball, 6 Gush. 469; Chicopee Bank v. Chapin, 8 Mete. 40 ; Story on Notes (7th ed.), § 195, note. " Duncan & Sherman, v. Gilbert, 30 N. J. L. R. (5 Dutch.) 527; Atlas Bank V. Doyle, 9 R. I. 270; Maitland v. Citizens' Nat. Biink, 40 Md. 540; Mechanics', &c. Bank v. Barnett, 27 La. Ann. 177. * Duncan & Sherman v. Gilbert, 30 N. J. L. R. (5 Dutch.) 527. " Maitlstnd v. Citizens' Nat. Bank, 40 Md. 540 (1874) ; Alvey, J. •Tooke V. Newman, 75 III. 315. ' Stoddard v. Kimball, 6 Cush. 469; Chicopee Bank v. Chapin, 8 Mete. 40. G84 BILLS AND NOTES AS SECURITY, AND SECURED. tected against equities/ though there are authorities which hold otherwise.^ § 833. In ordinary cases of pledges as collateral security for debts, the pledgee may file a bill in chancery to have a judicial sale, and this has been frequently done in the case of stock, bonds, plate, and other chattels ; or he may himself sell upon giving reasonable notice to the debtor to redeem.^ Commercial paper pledged as collateral security in an excep- tion to this rule in part, that is to say, the holder is not au- thorized to sell such paper so pledged in the absence of a special power for that purpose, at either a public or private sale ; but he is bound to hold and collect such paper as it falls due, and apply the momey to the payment of the debt.^ But he may, if he chooses, file a bill in chancery to have it sold under the directions of the court.® Where defendant was sued as an indorser upon a note containing a statement that the maker had deposited with the payee certain collaterals with authority to the latter to sell, without notice, in case of non-payment, and these collaterals came to plaintiff 's hands when it became the holder, it was held that the maker was entitled to the return of the collaterals when payment was ' Brown v. Leavitt, 31 N. Y. 113; Youngs v. Lee, 18 Barb. 187 ; 3 Kern. 511; Carlisle v. Wishart, 11 Ohio, 172; Norton v. Waite, 30 Me, 175: Bostwiok v. Dodge, 1 Doug. (Mich.) 413 ; Brush v. Scribner, 11 Conn. 388 ; Barney v. Earle, 13 Ala. lOG ; Bush v. Peckard, 3 Harr. 385; Dixon v. Dixon, 21 Vt. 450 ; Eman- uel V. White, 84 Miss. 56 ; Stevens v. Campbell, 18 Wis. 315; Struthers v. Ken- dall, 5 Wright, 214; Kellogg v. Fancher, 33 Wis. 21; Holmes v. Smyth, 16 Me. 177; Mayv. Quimby, 3 Bush. 90; Reddick v. Jones, 6 Ired. 107; McKnight v. Knisley, 35 Ind. 336; Bank of Republic v. Carrington, 5 R. I. 515; Vatterlien V. Howell, 4 Sneed, 441 (but see ante, § 830, and note) ; King v. Doolittle, 1 Head, 77 ; Wormley, v. Lowry, 1 Humph. 4G8 ; see ante, § 184 ; Swift v. Tyson, 16 Pet. 1. = Buhrman v. Bayles, 31 N. Y. S. C. (14 Hun), 608; Weaver v. Borden, 49 ■ N. Y. 293. ' Alexandria, Loudoun, &o. R. R. Co. v. Burke, 23 Qrat. 3G1 ; 3 Stoi^ Eq. Juris. § 1008; 3 Kent Com. [*583]. ' Wlieeler V. Newbould, 16 N. Y. 393; 5 Duer, 39; Alexandria, &c. R. R. Co. V. Burke, 22 Grat. 263. ' Donohoe v. Gamble, 38 Cal. 341. But quare? See Brown v. Ward, 3 Duer, 660; Atlantic, &c. M. Ins. Co. v. Boies, 6 Duer, 583; Wheeler v. Newbould, 16 N. Y. 393; 5 Duer, 39. HOLDER OP IKSTEUMENTS SEOQEED BY MORTGAGE. 685 demanded ; and that a presentment to liim of the note for payment by a notary, who was not in readiness to procure or surrender the collaterals, in response to the maker's demand for them, was insufficient to charge an indorser.^ SECTION II. HOLDER OF NEGOTIABLE INSTEUMENTS 8ECUEED BT MORTGAGE. § 834. There is no doubt that any security for the pay- ment of a bill or note passes by a transfer to the transferee.^ The doctrine has been laid down by a number of cases, and is stated by Mr. Hilliard, in his Treatise on Mortgages, that if a mortgage is given to secure a negotiable note, and both the mortgage and the note are transferred before maturity to a hona fide indorsee, such indorsee takes the benefit of the mortgage as well as of the note, clear of any equities between the original parties.^ " It is the debt which gives character to the mortgage, and gives the rights and remedies of the parties under it, and not the mortgage which determines the nature of tke debt." * But this doctrine is denied, on the ground that the mort- gage is simply a chose in action, and is taken subject to the accounts between mortgagor and mortgagee ; and while it is an incident to the debt, the benefit of which, so far as the assignor is concerned, passes with it, the assignee cannot rely on the privileged character of the note to insure him the ad- ' Ocean Nat. Bank v. Faut, 50 N. Y. 474. ' See ante, § 748. ' Hilliard on Mortgages, p. 536, sec. 49, a; Reeves v. Scully, Walker Cb. 248; Croft V. Bunster, 9 Wis. 503; Cornell v. Hichens, 11 Wis. 353; Fisher v. Otis, 3 Chand. (Wis.) 94; Martincau v. McCollum, 4 Chand. 153; Cicotte v. Gagnier, 3 Mich. 381 ; Updegraft v. Edwards, 45 Iowa, 515 ; Preston v. Morris, 42 Iowa, 549 ; Farmers' Nat. Bank v. Fletcher, 44 Iowa, 356; Duncan v. Louisville, 13 Bush. (Ky.) 385; Dutton v. Ives, 5 Mich. 515 ; Kelmer v. Krolick, 36 Mich. 373; Mur- ray V. Jones, 5D Ga. 109, held that Una fide holder of the note, without notice, was protected against defense, that tlie mortgage was made by the debtor in anticipa- tion of bankruptcy, to defraud creditors. * Croft V. Bunster, 9 Wis. 510. 686 BILLS AND NOTES AS SECUETTY, AND SECURED. vantage of the mortgage.^ The doctrine stated by Mr. Hilliard seems to us equitable and just, especially in cases where the mortgage uses such terms as show an intention to secui'e the note to the holder. The security of the mortgage may impart to the paper its marketable value, as in the case of corporation coupon bonds, which rest mainly upon the basis of such security for their payment. And to sever the basis of credit from the obligation to pay would most fre- quently defeat the negotiation of these, or similar instru- ments, at anything like their par value. § 834 a. In Massachusetts, where note and mortgage were upon illegal consideration and void, it ^vas held that as a bona fide holder without notice could enforce the note, he could also enforce the mortgage assigned with it, Metcalf, J., paying: "We know of no principle which makes the mort- gage less valid than the note in the plaintiff's hands." ^ In a case before the United States Supreme Court where failure of consideration between maker of a note secured by mort- gage, was pleaded against enforcement of the mortgage, it was held that the hona fiia holder of the note, without notice, could enforce it, and Swayne, J., said : " The contract as regards the note was that the maker should pay it at maturity to any hona fide indorsee ^vithout reference to any defense to which it might have been liable in the hands of the payee. The mortgage was conditioned to secure the fulfillment of that contract." ^ A deed of trust stands on the same footing as a mortgage ; and as an incident and accessory to the paper, the transfer of the latter carries with it to the transferees the benefit of the security.* The holder of a bill ' Johnson \. Carpenter, 7 Minn. 183; (1SC2) ; Walker v. Dement, 43 111. 278; Heller v. Meis, 2 Cin. (Ohio) 287; Petillon v. Noble, 73 111. 537 (1874) ; Bryant V. Vix, 83 111. 14 (1876) ; see Morria v. White, 28 La. 855 (1876). ^ Taylor v. Page, 6 Allen, 86 (1863). = Carpenter v. Longan, 16 Wall. 373 (1872) ; Sawyerv. Prickett, 19 Wall. 166 (1873). See to same effect Logan v. Smith, Sup. Ct. Mo. 3 Cent. L. J. 384 (1876) ; 63 Mo. 455. < New Orleans, &c. v. Montgomery, 95 U. S. (5 Otto), 16 (1877) ; Potts v. Blackwell, 4 Jones, (N. C. Eq.) 58. HOLDER OF INSTRUMENTS SECURED BY MORTGAGE. 687 or note secured by mortgage or deed of trust may proceed at law and in equity at the same time.^ Where a mortgage was made to secure the indorser of a note, it was held, in Maryland, that it secured to the benefit of every bona fide holder ; and that the mortgagee could not release the mort- gagor so as to deprive the holder of its benefit.^ § 834 Z*. But the doctrine of the text is subject to this limitation: that if the land conveyed by the mortgage was subject to a prior lien of a third party, the indorsee of the note would only acquire the right to enforce his claim against the land subject to sucb lien whether he had notice of it or not. This doctrine arises from the very nature of such a case, as the indorser himself could not by a negotiable, or ofcher contract, supersede the pre-existing rights of a third person not a party to Ms act* And wherever the assignee is charge- able with constructive notice of an equity prior to the mort- gage under which he claims, he must yield to it.* If the transfer of a note payable to order, and of the mortgage to secure it be by delivery merely, both note and mortgage are open to equities.® § 835. It has been held that wbere a promissory note and a mortgage securing its payment have been executed to a cor- poration by A., and such corporation executed to C. its ne- gotiable bond for a sum equal to the note, attaching thereto the note and mortgage, and reciting in the bond that the cor- poration transferred the note and mortgage to C. as security, and that both should be transferable in connection with the bond, and not otherwise ; that this was a sufficient indorse- ment ^vithin the law merchant to pass to C. the legal title to the note, and that he became thereby a bona fide holder, and was entitled to protection against equitable defenses existing against it in the hands of the corporation.^ Where a note is ' Ober V. Gallagher, 93 U. 8. (3 Otto), 199. ^ Boyd V. Parker, 43 Md. 783 ; see McCracken v. German Fire Ins. Co. Id. 471. ' Linville v. Savage, 58 Mo. 248 ; Logan v. Smith, 62 Mo. 455 (1876). * Simo V. Hammond, 33 Iowa, 368; English v. Wafles, 13 Iowa, 57. ' Crum V. Corby, 11 Kansas, 464. ' Crosby v. Roub, 16 Wis. 635 (18G3), Paine, J. : "The intent to pass the G88 BILLS AND NOTES AS SECURITY, AND SECURED. secured by mortgage, and tliere is a provision in the mort- gage not contained in the note, the mortgage will control.' In Massachusetts it has been held that if one who holds by assignment duly recorded a mortgage and a note indorsed in blank purporting on its face to be secured by it, " the same being collateral to " a certain note, assigns the mortgage, and afterward indorses the note for which it was collateral, retain- ing the mortgage note to another by an assignment in like woi'ds duly recorded, he conveys a title to the mortgage debt, except as against an innocent purchaser for value without notice, and one to whom he subsequently passes the mortgage note and fi'audulently assigns the mortgage upon a separate paper as collateral security for a loan, is not such a pur- chaser.^ Where a deed of trust given to secure sundry notes maturing at different times, provides that none of them shall become due, and that the deed shall not be foreclosed, till the maturity of the note made latent payable, the holder pur- chasing one of the notes, with knowledge of such provisions, cannot recover judgment until the last note matures.® title and make the note transferable by delivery afterward as a note payable to order, and duly indorsed by the payee, is beyond question. And this contract, like all others, must take effect according to the intent of the parties, if it is sufficient in law to express that intent. And the fact that the parties contracted for an absolute liability by the vendor, evidenced by a distinct negotiable instru- ment on the back of the one transferred, cannot, upon any rational principle, be held to distinguish the case, so far as the mere question of a transfer is concerned, from a case where they contract for no liability, or for the conditional liability of a indorscr, or the absolute liability of a guarantor. I conclude, then, that if the bond had been written on the back of the note, it would have been fully sufficient to pass the legal title within the law merchant." Bange v. Flint, 25 Wis. 040; see ante, § 689, and post, § 855. ' Dobbins v. Parker, 46 Iowa, 358 ; see ante, § 156. ' Strong V. Jackson, 133 Mass. 60. = Brownlee v. Arnold, 60 Mo. 79. CHAPTER XXVI. EIGHTS OF A BOKA FIDE HOLDEE OE PUECHA8EB OF KEGOTI- ABLE INSTEITMENTS OEIGINATINa IN FKAUD, DUEESS, OE VIOLATION OF AUTHOEITT. § 836. There are numerous cases in wliicli the line of de- marcation between the fraud which does not affect the bona fide holder for value, and without notice, and that which utterly vitiates the instrument in all hands whatsoever, is narrow and difficult to distinguish. The distinctions taken are frequently very refined and metaphysical ; but the test questions to be applied, we think, are these : (1) Has the party sought to be charged created an agency or trust, by means of which the fraud has been committed ? (2) Has he deliberately given the appearance of validity to the instru- ment ? (3) Has he committed negligence respecting it, by means of wbich an opportunity for the fraud has been crea- ted? And whenever either of these questions can be an- swered affirmatively upon a fair consideration of all the cir- cumstances of the case, the balance of equity is in favor of the bona fide holder for value, and without notice, the axio- matic principle of law then applying, that where one of two innocent persons must suffer, the one who creates the trust, or does the act from which the loss results, must bear it. SECTION I. HOLDEK OF NEGOTIABLE mSTETTMENTS COMPLETED, BUT NOT DELIYEEED. § 837. (1) The first class of cases of the description above mentioned are those in whict a completed bill or note is obtained from the maker or drawer, without any delivery on his part, actual or constructive. We have seen that de- livery is necessary in the case of a bill or note, as it is in Vol. I.— 44 090 EIGHTS OF A BONA FIDE HOLDER. the case of every other contract, in order to consummate its validity between the parties to it. Suppose, however, that a bill, or promissory note, or bank note, has been fully com- pleted in form and signed by the drawer or maker, and be- fore delivery is stolen from the possession of the party who has signed it, and passed by the thief to a })ona fide holder for value in the usual course of business, would the fact that the party signing had never delivered it afford him a defense against such bona fide holder ? Whether the instrument be payable to bearer, or to the order of the tbief, if it be in- dorsed by him, we can see no reason why the hona fide holder should not be entitled to recover. The want of delivery is a defect not apparent on the face of the bill or note. The party has given the appearance of validity to his paper. His signature is itself an assurance that his obligation has been perfected by delivery; and it being necessary that the loss should fall upon one of two innocent parties, it should fall upon the one whose act had opened the door for it to enter.^ In Massachusetts, this doctrine has been applied in favor of the holder of bank notes which were signed and ready for use, and which were stolen before they had been issued from the vault of the bank in which they were deposited;^ and in Illinois, against the maker of a note who signed it as a mere matter of amusement, and from whom it was stolen .by one who saw him sign it, and who passed it to an innocent in- dorsee, the Court saying, per Walker, J. : '^ " The maker evidently intended to sign such a note as this, and she knew its contents when she signed the instrument. This case does not materially differ from any other note or bank bill which may be stolen and negotiated after it has been made." And in a later case, where the maker drew his note for $108, in- tending to insert a condition that it should not be valid unless the plows for which it was executed were delivered, ' Kinyon T. Wohlford, 17 Minn. 239. ' Worcester County Bank v. Dorchester, &c. Bank, 10 Gush. 488; see Thomson on Bills (Wilson's ed.), 92; 1 Parsons N. & B. 114, and 'poit, § 839, note 1. ^ Shipley v. Carroll, 45 III. 285. HOLDER OF INSTRUMENTS COMPLETED. 691 and the payee snatched it from his hand, ran off, and trans- ferred it to a bona fide holder for value, without notice, this case was re-affirmed, and its principle applied.^ § 838. There are cases which take a different view. Thus in Michigan, where the maker of a note payable to the order of B. signed it and left it on a table in a room where his sister and B. remained together, enjoining B. not to take it, as the negotiation pending was not concluded ; but B., never- theless, took it and transferred it to an innocent purchaser, it was held that the maker was not liable, not having been guilty of " culpable negligence." * In this particular case it would seem that the maker, by trusting the paper in the custody of B., rendered himself liable for the consequences; and that the facts hardly justified the conclusion that the maker was guilty of no culpable negli- gence. But if the paper had been snatched from the maker's hand, as in one of the Illinois cases above cited, then having trusted no one, having been guilty of no negligence, and not having deliberately concluded the act which imparted the ap- pearance of validity to it, it would seem too extreme an exten- sion of the doctrine in favor of a bona fide holder of a nego- tiable instrument to subject the maker to its payment. All purchasers must incur some risk ; and to protect them, after the maker has done some act which, in equity and good con- science, should seal his mouth, is all that seems to us is neces- sary to guard their rights, v^ithout inflicting great injiistice on the innocent party. It is the case of one innocent party against another equally so ; and when the latter has done nothing to lower the grade of his claim to protection, we do not see that the former stands upon any superior footing. § 839. Where the maker has perfected the instrument, and left it undelivered in a safe, desk, or other receptacle, it should then be at his hazard. Such papers are made for use, and not for preservation. The maker creates the risk of their being eloigned, by keeping them on hand, and places ' Clarke v. Johnson, 54 111. 396. ' Burson v. Huntington, 31 Mich. 4}5. 692 EIGHTS OP A BONA FIDE HOLDER. them on the same basis as negotiable papers which have been put upon the market. "When once issued, the purchaser is protected and the owner loses, even though he had guarded his property Avith bolt and bar ; and, if bankers and others who must necessarily be in possession of negotiable securities in the course of trade are not protected, we can discover no principle which can be invoked to protect one who holds his own paper contrary to the ordinary waiits and usages of trade.^ § 840. In New York the cases on this point do not seem to us reconcilable. In one case, where a note for $120, made payable to A. or bearer, for the purpose of being given in renewal of another, was stolen out of the maker's desk, and sold to the holder for $115, it was held the maker was not liable. W. F. Allen, J., saying : " The note never had any inception so as to enable any person to become a bona fide holder of it. It was an imperfect instrument, wanting de- livery to give it validity as the promissory note of the de- fendant. The holder has taken a blank piece of paper, not a promissory note." ^ But in a later case, where the note was indorsed by the payee, for whose accommodation it was made, and left in his desk, and it was eloigned therefrom and passed to a bona fide holder, for value, and without notice, it was held that the fact it had never been delivered as a valid security was no defense.* ' Thomson on Bills (Wilson's ed.), 93; 1 Parsons N. & B. 114, in which it is said : " If a person sign notes in blank, and lock them up in his sale, whence they are stolen, filled up and negotiated, without fault or negligence on his part, he is not liable. Possibly it might be held otherwise, if be make and sign a perfect note, payable to bearer, and it be stolen under similar circumstances; on the ground that, when the instrument is once perfected (although it has never passed out of the maker's hand, and consequently has had no inception as a contract), it is like money; and any one who receives it in good faith, and for a valuable consideration, acquires a perfect title." ' Hall V. Wilson, IG Barb. 55G (1853). ' Gould T. Segee, 5. Duer, 270 (:85G). HOLDER OF INSTRUMENTS INCOMPLETE. 693 SECTION ir. HOLDEE OF NEGOTIABLE INSTETTMENTS INCOMPLETE AND BNDELIVEEED. § 841. (2) The second class of cases arises when an in- complete instrument has been signed and stolen, without any delivery to an agent in trust, or otherwise, intervening. In such cases, no trust for any purpose has been created. No instrument has been perfected. No appearance of validity has been given it. No negligence can be imputed. There- fore, if the blank be filled, it is sheer forgery, in which the maker is in nowise involved, and he is not therefore bound, even to a iona fide holder without notice.^ § 842. In New York, it has been held that where coupon bonds of a railroad corporation, negotiable in form, and con- taining a provision on their face that " the president of the company is authorized to fix by his indorsement the place of payment of the principal and interest, in conformity with the tenor of this obligation," and also bearing the following in- dorsement : " I hereby agree that the within bonds and the interest coupons thereto attached shall be payable in , G. C. Young, president,'' were not valid in the hands of lona fide holders for value, and without notice, they having been stolen from the safe of the company by the soldiers of the United States, and issued into the world in this imperfect form. The ground of the decision is that the blank as to place of payment not having been filled, was notice to the world that the instrument had not been completed, and that no one was clothed with authority by the president of the company to complete it.* In England, where the defendant gave his blank acceptance to H, who returned it, and it was then stolen from the chamber of the defendant, and C. filled in his own name and negotiated it, it was held that a hona jide holder could not recover.* ' 1 Parsons N. & B. 114; see anU, § 839, note 1. ' Ledwick t. McKim, 53 N. Y. 315 (1873); S3e Redlick v. Doll, 54 N. Y. 236. ' Baxendale v. Bennett, L. R. 3 Q. B. D. 525, 47 L. J. Q. B. 624, 26 W. R. 809. 694 BIGHTS OF A BONA FIDE HOLDER. SECTION III. IIOLDEE OF NEGOTIABLE INSTEUMENTS INTRUSTED TO ANOTHEE WITH BLANKS. § 843. (3) The third class of cases comprises those in vvhicL the party sought to be charged upon the negotiable instrument has been betrayed by bis agent, or some other party to whom he has instrusted his signature on a blank paper, and who lias fraudulently written over it a bill or note. There is no doubt that if the bill or note were com- plete A¥ith the exception that there was a blank left for the sum, the parties who had signed, accepted, or indorsed it would be bound to pay any sum with which it might be filled up to a bona fide holder without notice of the limita- tion of authority to the agent or other person having it in hand,^ and it is immaterial that such holder knew that it had been signed, accepted, or indorsed in blank, unless he was also cognizant of its being fraudulently filled up.^ If he knew when he took the paper that authority as to filling it up was exceeded, he could not recover.** It seems, also, to be well settled that if the party sought to be charged has intrusted his blank signature to an agent or other person, and has authorized such agent or other per- son to fill the blank in some form, for some purpose, that he would be bound to a bona fide holder if the agent or person wrote over suck signature a bill or note. Thus, where papers indorsed in blank were left with a clerk, with authority to use them for certain purposes, and they were fraudulently obtained from him and used differently, the indorser was keld liable.* ' Michigan Bant v. Eldred, 9 WalL ; Russell v. Langstaffe, 3 Dougl. 5U ; Violett v. Patton, 5 Cranch, 142 ; Orrick T. Colston, 7 Grat. 189. In Fullerton v. Sturgis, 4 Ohio St., A. and B., as sureties of C, signed an instrument payable to D. or order, in blank as to date, amount, and time of payment, and delivered it to C, the prin- cipal, with the agreement that it should not be filled up for more than |1,000 or $1,500. 0. filled it up for |10,000, and discounted it, and it was hold that the parties wore bound. See Redlick v. Doll, 54 N. Y. 2.36; and see ante, § 842, and §§ 143, et aeq. " Huntington v. Branch Bank, 3 Ala. 186. ' Clewer v. Wynn, 59 Ga. 246. ' Putnam t. Sullivan, 4 Mass. 45; see 1 Parsons, N. & B. 114. INSTRUMENTS WRITTEN OVER BLANK SIGNATURES. 695 § 844. In all these cases the first test stated by the text obviously applies. The party sought to be charged has created the agency or trust by means of which the fraud has been committed. Holding the agent out to the world, by con- fiding his signature into his hands, and accrediting him with that " letter of credit for an indefinite sum," ^ he who has thus told others to trust him, cannot throw tbe burden of loss on them when they have complied with that request. To hold otherwise would be to punish confiding innocence, and to protect the authors of the fraud. In Maine, where suit was brought by a honafide holder against the maker of a note who alleged that it was a forgery, and his evidence tended to show that the instrument when delivered contained blanks unfilled, which were afterwards fraudulently filled, it was held that it was for the jury to determine whether the instrument was delivered as an incomplete paper with blanks to be filled, and that if it was so delivered for any purpose, the person receiving it had implied authority to fill the blanks, and the maker would be liable thereon to a holder in good faith.* So where the maker of a note for $300 lett a blank between "hundred" and "dollars," and "twenty" was in- serted so as to make the note for $320, a bona fide holder was held entitled to recover, the maker having afibrded the opportunity of alteration.* Oases of this kind are elsewhere more fully cited and discussed.* SECTION IV. HOLDER OF NEGOTIABLE INSTEUMENTS WKITTEN OVER BLANK SIGNATURES. § 845. (4) The fourth class of cases comprises those in which the signature of the party has been written on a blank paper, and no authority has been given to the persons in whose hands it is intrusted, or to whose it may come, to write any contract over it ; as, for instance, if such signature were written on the flyleaf of a book loaned to such person, or in an album, or were left with him for any legitimate purpose, ' See ante, § 142. " Abbott v. Rose, 63 Me. 194. ' Tocum V. Smith, 63 111. 331. * See vol. II, Chapter XLIII, on Alteration, Sec. VF, §§ 1405 to 1409 inclusive. 696 EIGHTS OF A BONA FIDE HOLDER. such as to be used as a means of identifying the writer's hand- writino- ; and in such cases, if a bill or note be written over the blank signature, the party would not be bound.^ Thus, where the party wrote his name on a blank paper, and it was taken from his table by another, who caused a note to be written over it, and put in circulation, these views were taken. Collier, C J., saying: " If a recovery were allowed upon such a state of facts, then every one who ever indulges in the idle habit of writing his name for mere pastime, or leaves sufficient space between a title and his subscription, might be made a bankrupt by having promises to pay money written over his signature." ^ § 846. In these cases, no trust or agency was reposed in the holder of the blank. No appearance of validity was given to the paper as a note. And it could hardly be said that the party was guilty of any negligence in exercising his right to do so simple a thing as the mere writing of his name, when he attached no words to it to give it any sig- nificance. In Iowa, the doctrines above stated have been adopted, and there, in a case where A. wrote his name on a piece of blank paper, and sent it to B., who was his agent respecting certain matters, in order that he might use it in identifying his signature, and B. had a note printed over it, and passed it to C. before maturity, in the usual course of business, it was held that the latter could not recover.* ' Caulkins v. Whisler, 29 Iowa, 495 ; Nance v. Lary, 5 Ala. 370. ' Nance v. Lary, 5 Ala. 370. ° Caulliins v. Whisler, 29 Iowa, 495, in whicli case Beck, J., said: "The case differs materially in its facts from the case cited in support of plaintiff's right to recover. In these cases blanks were filled up contrai^ to the direction of the maker or without his authority. But in all of such cases the makers intended to execute an instrument which should be binding upon them. Blanks were filled up contrary to the authority given by the makers, or in some other way the instruments were made so that they did not correspond with the intention of the makers ; but in all such cases there were makers aud instruments, and through the frauds of those to whom the instruments were intrusted, tliey were thus made to be of different effect than was designed by the makers. In these cases it is correctly held, that while the parties pei-petrating the fraud in some cases INSTRUMENT PROCURED BY IMPOSITION. 697 SECTION Y. HOLDER OF NEGOTIABLE mSTEUMENTS PEOCITEED BY IMPOSITION ON IN- FIEM OK ILLITEEATE PEE80NB, § 847. (5) The fifth class of cases are those in which some natural infirmity or defect of education has been im- posed upon, and the party deceived into signing a note under the impression that it was for a different amount, or was a contract of a different character. Thus, if a note were fraud- ulently or falsely read to a blind man, and he were to sign it believing it to have been correctly read ; ^ or if the party were unable to read, and signed a note under the assurance that it was an agreement of a different kind, we should have a new element entering into the consideration of his liability. In such cases the want of faculties to detect the fraud shields the party from its consequences, and the authorities justly exonerate him. He has created no agency or trust. He has not inten- tionally or knowingly given the appearance of validity to the paper. It cannot be said that he has acted negligently, be- cause his infirmities prevented that diligence which men of ordinary faculties and of education possess. may have been gailty of forgery, yet the makers were bound upon the instruments as against holders in good faith and for value. " The reason is obvious. The maker ought rather to suffer on account of the fraudulent act of one to whom he intrusts his paper, or who is made agent in respect to it, than an innocent party. The law esteems him in fault in thus put- ting it in the power of another to perpetrate the fraud, and requires him to bear the loss consequent upon this negligence. In the case under consideration no fault can be imputed to defendant. He did not intrust his signature to the posses- sion of the forger for the purpose of binding himself by a contract. He conferred no power upon the party who committed the crime to use it for any such purpose. He was not guilty of negligence in thus giving it, for it is not unusal, in order to identify signatures, and for other purposes, for men thus to make their auto- graphs. The defendant cannot be regarded as being so far in fault in the trans- action that he ought to bear the loss resulting from the crime." See Kline v. Guthrie, 43 Ind. 227 ; Deturler v. Besh, 44 Ind. 70. ' Putnam v. Sullivan, 4 Mass. 45, Parsons, C. J., saying: "That, perhaps, if a blind man had a note falsely and fraudulently read to him, and he indorsed it supposing it to be the note read to him, he would not be liable as indorsee, be- cause he is not guilty of any laches." See Schuylkill County v. Copley, 67 Perm. St. 386 (a bond). 698 EIGHTS OF A BONA FIDE HOLDEK. § 848. In New YorV where a bona fide holder for value, and without notice of any defect, brought suit on a promissory note, the defendant offered to prove in evidence that he was unable to read, and that, when he signed the note, it was represented to him, and he believed that it was a certain other contract, offered to be also produced in evidence, and which purported to be of an entirely ditferent character. The Supreme Court of New York (overruling the decision of the lower court) held that the evidence was admissible, and presented a sufficient defense, Talcott, J., saying : " A bona fide holder of commercial paper, for value and before maturity, is protected, in many cases, against defenses which are per- fectly available against the original parties, such as that the signature was obtained by false and fraudulent representa- tions ; that the paper has been diverted ; that a blank bill or acceptance has been filled up for a greater amount than the party to whom it was delivered was authorized to insert, &c. But, in all these cases, the party intended to sign and put in circulation the instrument as a negotiable security; where this is the case, he is bound to know that he is furnishing the means whereby thii'd parties may be deceived and innocently led to part with their property on the faith of his signature, and in ignorance of the true state of facts. But while this is a rule of great convenience and propriety, there are and must be some limits to its application, some defenses as to which even a honafide purchaser purchases at his peril. * * * The true distinction was tersely stated by Bovill, C. J., in Foster v. McKinnon (38 Law Journal Kep. N. S. 310), inter- rupting counsel arguendo, who was stating the proposition that where the plaintiff proves he is a bona fide holder fur value, it is immaterial that the signature of the defendant was obtained by fraud." "That," said the Chief Justice, "is where the defendant intended to put his name to an instru- ment which was a bill." In another New York case evidence was given tending to show that the note was signed by the ' Whitney v. Snyder, 2 Lans. (N. T.) 477. See Chapman v. Rosa, 56 N. Y. 137; and ;ay (c ly and severally promise to pay) John B. order, five hundred dollars, value received. ir we joint- AsTOE, or ^oine/cut / Qiicu/c/. See Text, pp. 83, S4. APPENDIX. 771 7. Form of Note iu Common Use in Indiana. $500. Terre Haute, Iml, 31 Marc?i, 1876. Sixty days after date, I promise to pay to the order of Daniel W. Vooehees, at National State Banh of Terre Haute, five hundred dollars, for value received, witJiout any relief from valuation or appraisement latos, with interest at\0 per cent, per annum after maturity, and 5 per cent, attorneif s fees if suit he instituted on this 7iote. The drawers and indorsers, severally, waive pre- sentment for payment, protest and notice of protest of non-payment of this note. See Text, pp. 52, 55. 8. Form of Negotiable Note in Yirginia. $500. Lynchburg, Va., 31 March, 1876. Sixty days after date, I promise to pay to Edwaed S. Geegoet, or order, without offset, negotiable and pay- able at The First National Banh of Lynchburg, Virgi- nia Qiomestead and all other exemptions waived by the maher and each indorser), fwe hundred dollars, for value received. s. ^ ^.. - See Text, p. 80. KF 957 Dl8 1879 Author Vol. Daniel, John Warwick Title Copy A Treatise on the law of negotiabl