?5"7 ifOCi KF 957.N8ri900 '"""'' '■'''"^ "imwiUSSiSt,,"'* '"* "' '''"' and notes 3 1924 018 850 861 dnrttpU Ham ^riynnl Slibtarg 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/cu31924018850861 Of elementary treatises on all the principal subjects of the law. The special features of those books are as follows: 1. @ 0uccincf 0fftfemenf of fearing pnrm:ptte in 6fftcfij fetter t^pc. 2. (S- more erf enZiel) comment ftrg, efuct^afing f ge jmncipfcs. 3. (t^Ue anb auf^fiee. Published in regular octavo form, and sold at the uniform price of $3,75 per Dofume, incfu^mg iefiwre. 1. Norton on Bills and Notes. {3d Edition.) 2. Clark's Criminal Law. j. Shtpman's Common-Lain Pleading. (2d Edition. ) 4. Clark on Contracts. 5. Black's Constitutional Law. {2d Edition.) 6. Fetter on Equity. 7. Clark on Criminal Procedure. 8. Tiffany on Sales. g. Glenn's International Law. 10. Jaggard on Torts. (2 vols.) 11. Black on Interpretation of Laws. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Law. 14. Hale on Damages. 15. Hopkins on Real Property. 16. Hale on Torts. 17. Tiffany on Persons and Domestic Relations. 18. Croswell on Executors and Administrators. 19. Clark on Corporations. 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. 23. Barrows on Negligence. In preparation: Handbooks of the law on other subjects to be announced later. ^ufifie^el) ftn^ for eafe fig nrest QpuBftB^ing Co., ^i. (pduf, (^inn. E810 HAND-BOOK LAW OF BILLS AND NOTES By CHARLES P. NO RTON Lecturer on Bills and Notes in the Buffalo Law School THIRD EDITION WITH AN APPENDIX CONTAINING THE NEGOTIABLE INSTRUMENTS LAW By FRANCIS B. TIFFANY St. Paul, Minn. , WEST PUBLISHING CO. 1900 ^^^^^^ Copyright, 1893, BT WEST PUBLISHING COMPANY. Copyright; IS95, BT "WEST PUBLISHING COMPANY. Copyright, 1900, BT WEST PUBLISHING COMPANY. \ PREFACE TO THIRD EDITION. In preparing a new edition of Mr. Norton's book, it has been deemed advisable to print as an appendix the Negotiable Instruments Law, which has already been adopted in fifteen states, as well as in the Dis- trict of Columbia. It is obvious that even an elementary book upon Bills and Notes must contain references to this law, which, while it is, in the main, declaratory in its effect, settles some doubtful points, and necessarily changes rules in many jurisdictions upon points con- cerning which a conflict of laws existed. The text of the law as print- ed in the appendix is that of the New York act, such few modifications as have been made by the various states being mentioned in the notes. The law is also valuable to the student, even in states which have not adopted it, as furnishing a concise statement of rules, which for the most part are of universal application; and for this reason the editor has throughout the book, in the footnotes, inserted references to the appropriate sections of the law, at the same time pointing out any changes effected by them. Much new matter has been incorpo- rated, and this has necessitated some alteration of the former text. At the suggestion of many teachers, the publishers have adopted the device of printing in bold type in the footnotes and text the names of all cases there cited which are to be found in certain of the collec- tions of leading and illustrative cases on Bills and, Notes in use in the law schools. The cases so printed are to be found in Ames' Cases on the Law of Bills and Notes, Huffcut's Negotiable Instruments, and Johnson's Elements of the Law of Negotiable Contracts (second edi- tion). The present editor wishes to express his great obligation to Prof. Ames, whose Index and Summary at the end of the cases, unquestion- ably the most important contribution to the subject that has been made in America, he has constantly consulted; and to Prof. Huffcut, whose Negotiable Instruments is an invaluable commentary upon the Negotiable Instruments Law. F. B. T. St. Paul, August 31, 1900. (V)* TABLE OF CONTENTS. CHAPTER I. OF NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. Section Page 1. Origin of Negotiability 1-8 2-7. Distinction between Assignability and Negotiability &-14 8-9. Indicia of Negotiability 14r-17 10. Purpose of Negotiability 17-18 11. Payment by Negotiable Instrument 19-21 CHAPTER II, OF NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSENTIAL REQUISITES. 12. Definition and Forms of Bills of Exchange 22-25 13. Definition and Form of Note 25-26 14. Essentials of Bill or Note 26 15. Order Contained in Bill 27-29 16. Promise Contained In Note 29^3] 17-20. Certainty as to the Terms of the Order or Promise 31-42 21-25. Payment of Money Only 42-53 26-80. Specification of Parties 54-63 31-33. Capacity of Parties 63-65 34. Authority of Agent 65-66 35-37. Delivery of Instruments 67-71 38. Datfe 72-73 39. Value Received 73-75 40. Days of Grace 75-7T CHAPTER m. ACCEPTANCE OF BILLS OF EXCHANGE. 41. Definition 78-81 42-45. Acceptance According to Tenor 82-85 46. Who may Accept 86-88 NEG.BILLS (vil) Vlll TABLE OF COKTENTS. Section Page 47. Delivery 88-89 48-49. Forms and Varieties of Acceptance. ■ ■, 89-93 50.C , Implied Acceptance 93-95 51-52. Acceptance on Separate Paper 95-99 53. Parol Acceptance of a Bill 99-101 54-54a. Acceptance for Honor or Supra Protest 101-103 55. Time Allowed for Acceptance 103-104 CHAPTER IV. INDORSEMENT. 56. Definition 105 57. Formal Requisites. . . ; 105-110 58-59. Indorsement in'Blank-. 110-115 60-61. • Special Indorsement. 116-119 62-64. Indorsement without Recourse, Conditional and Restrictive Indorsement 119-127 65. Nature of Indorsement 128-131 66. Requisites of Indorsement .-.-.. 131-137 67-68. Irregular Indorsements 138-143 CHAPTBE V. of' THE NATURE OF THE LIABILITIES OF THE PARTIES. 69. • Acceptor and Maker.- ..;.;:. 144-145 70. • Facts which the Acceptor Admits ; . .146-150 71. ■ Facts which the Acceptor does not Admit. 151-152 72-73. - Acceptor Supra Protest , 152-156 74r-76. Drawer and Indorser 156-159 77. Undertaking of Drawer .159-162 78.- Warranties of Indorser 162-166 79. -Warranties of Indorser without Recourse-^Of Transferror by Delivery 167-170 80.- Damages against the Acceptor, Maker, Drawer, and Indbrs- ers upon the Bill or Note and upon the Warranties 170-176 81-83. Accommodation Parties and Persons Accommodated 176-183 83a-83b. Conflict of Laws. 183-190 TABLK OF contents; IX CHAPTER VI. TRANSFER. Section Pass 84. Definition 191-192 85. . Validity between Immediate Parties 192-195 86. Methods of Transfer 19^ 87. By Assignment. 196-198 88. By Operation of Law 198-200 88a-89. By Negotiation 200 90-90a, Negotiation by Indorsement. 200-204 91. By Delivery 204r-206 92. Overdue Paper • 207-212 92a. Bight to Sue 212-215 CHAPTER VII. DEFENSES COMMONLY INTERPOSED AGAINST A PURCHASER FOR VALUE WITHOUT NOTICE. 93. Real and Personal Defenses 216-218 94-107. Real Defenses 218-260 108-121. Personal Defenses 260-308 CHAPTER Vin. PURCHASER FOR VALUE WITHOUT NOTICE. 122. What Constitutes 309-310 123-124. Value 310-317 125-127. Notice 317-326 128-131. Presumption and Burden of Proof— Order of Proof 327-335 CHAPTER IX. PRESENTMENT AND NOTICE OF DISHONOR. 132. In General 336-337 133-140. Presentment 337-359 141-144. By Whom and to Whom Made— Effect of Failure to Pre- sent and Protest 360-371 145-146. Notice of Dishonor 372-393 147-147b. Excuses for Failure to Present or Give Notice 394-403 TABLE OF CONTENTS. CHAPTER X. CHECKS. Section Page 148-150. In General 404-408 151. Checks as Negotiable Instruments 408-411 152-154. Presentment and Notice of Dishonor— EfEect of Delay 412-417 155. Bights of Holder against Bank 418-419 156-159. Certification and Acceptance of Checks 419-427 160. Failure of Bank to Honor Check 427-429 APPENDIX. NEGOTIABLE INSTRUMENTS LAW. (Pages 431-489.) t HAND-BOOK OF NEGOTIABLE BILLS AND NOTES THIRD EDITION. CHAPTER I. OP NEGOTIABILITY SO PAR AS IT RELATES TO BILLS AND NOTES. 1. Origin of Negotiability. 2-7. Distinction between Assignability and Negotiability. 8-9. Indicia of Negotiability. 10. Purpose of Negotiability. 11. Payment by Negotiable Instrument ORIGIN or NEGOTIABILITY. 1. The negotiability of bills of exchange and promissory notes originated in the custom of merchants. The statute of Anne, -wrhich is declaratory of the common law, estab- lished the negotiability of promissory notes. The law, looking at bills of exchange and promissory notes as a circulating medium, divides them into two classes — negotiable in- struments and non-negotiable instruments. Negotiability is not necessary to the form or substance of a promissory note or bill of exchange.* Non-negotiable instruments are little more than 1 Micbigan Ins. Bank v. Eldred, 9 Wall. 544; Wells v. Brigham, 6 Cusb. C; DOWNING v. BACKENSTOES, 3 Gaines (N. Y.) 137; PRESIDENT, ETC., OF TURNPIKE ROAD v. HURTIN, 9 Johns. (N. Y.) 217; KIMBALL v. NEG.BILLS.— 1 2 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. (Ch 1 evidences of indebtedness. In their transfer, the law treats them in most respects as ordinary choses in action^ and subject to the general rules touching assignments. For negotiable instruments, on the other hand, in their most common foaa of bills and notes, the law has endeavored to construct a system of rules which shall protect persons who take them as a circulating medium, and which it is the purpose of this treatise to point out.^ Oustam. of Merohants^Law Merehxmt. While the historical source of the negotiability of both bills of exchange and promissory notes is the custom of merchants, which in time came to be recognized and enforced by the courts, the negotia- bility of promissory notes was not set upon a firm basis until it had obtained the sanction of parliament. Notes were first recognized by the courts, and then refused recognition. Their negotiability was established in 1705 by the statute of 3 & 4 Anne, c. 9, §§ 1-3. The custom of merchants means a body of usages and rules relating to trade, which grew up among merchants, and were adopted into the law by the courts. In English law it is as old as Magna Charta, and it is recognized' in the statutes of the Plantagenets and the Tudors,' though its substantial adoption into the law took place much later. Originally it distinguished the contracts of foreign merchants from the contracts of ordinary individuals, construing them not according to the principles of the common law, but according to the usages of trade.* This custom of regulating dealings between native and foreign mer- chants was extended to dealings between native merchants, but was confined to the persons of merchants, as apart from tiiose pursuing other vocations." It was not until 1666 that courts declared that "the HUNTINGTON, 10 Wend. (N. Y.> 675; HALL v. FARMER, 5 Denio (N. Y.) 484. 2 For a discussion of the origin, liistory, and purpose of negotiable instru- ments, see GOODWIN v. ROBARTS, L. R. 10 Exch. 337, Johns. Cas. BiUs &N. 3. 8 Magna Charta, c. 30; Acton Burnel de Mercatoribus, H Edw. I.; the Stat- ute of Merchants, 13 Edw. I. See, also, 27 Edw. III. cc. 19, 20. See, also, 13 Edw. VL c. 10, 34 Hen. VIIL, cited in Brown, Abr. tit. "Customs," p. 59. *Co. Lltt. 182; 2 Inst. 404; VANHEATH v, TURNER (Mich. Term) Winch, 24. Eaglechilde's Case, Het. 167; Litt. 363. § 1) ORIOIN OF NEGOTIABILITY. 3 law of merchants is tlie law of the land, and the custom is good enough generally for any man, without naming him merchant" ' Of the many customs of merchants, there were two which were especially the subject of judicial interpretation. They were those concerning instruments which related to the remittance of money from one place to another, and in which credit was used as a means of liquidating indebtedness, — ^instruments, in short, which are now called "bills of exchange" and "promissory notes." Of these, bills, and particularly foreign bills, are by far the more ancient Anderson, in his History of Commerce,^ speaks of one granted by the Emperor Barbarossa to the city of Hamburg in the year 1189. "I remember," said Chief Justice Holt,* "when actions upon inland bills of exchange did first begin; and there they laid a particular custom between London and Bristol, and it was an action against the acceptor. The defendant's counsel would put them to prove the custom, at which Hale, C. J., who tried it, laughed,, and said they had a hopeful case of it And in my Lord North's time it was said that the custom in that case was part of the com- mon law of England, and these actions since became frequent, as the trade of the nation did increase, and all the difference between foreign bills and inland bills is that foreign bills must be protested before a public notary before the drawer can be charged, but inland bills need no protest" Between inland bills and promissory notes at first there was no distinction. Both were called indifferently bills of exchange.' The law considered a promissory note in the light of a bill of exchange drawn by a man upon himself, and ac- cepted at the time of drawing." And it is worthy of remark that the statement accepted by the text writers, and repeated again and Woodward r. Rowe, 2 Keb. 105, 132. See, also, Anon., Hardr. 485 Mich. Term, 20 Car. II. (1868) believed to be MIIfTON'S CASE, vide 1 Mod. 286; Carter v. Downisb (1 W. & M., anno 1688) Show. 127. See, also, complete review of the cases on this subject in the reporter's note to Mandeville v. Kiddle, 1 Cranch, 290. 1 1 And. Com. p. 171. * BTJLLBE V. CKIPS, 6 Mod. 29. 8 GRANT V. VAUGHAN, 3 Burrows, 1525, 1 W. Bl. 488; Edgar v. Chut, 1 Keb. 592, 636; Horton v. Coggs (Mich. Term, 2 W. & M. 6, anno 1683) 3 Lev. 299. » Marius, in his Advice, p. 3; Lov. Bills & N., p. 22; Kyd, Bills, p. 2. 4 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. (Ch. 1 again in the cases, that a promissory note was never within the cus- tom of merchants, is incorrect.^" It was as much a mercantile in- strument as a bill of exchange. It was introduced under the cus- tom of merchants, and it was therefore, up to the time of the famous dispute between Lord Holt and the merchants which led to the enactment of the statute of Anne, a negotiable instrument. "The reason of making the statute of Anne," says Lord Hardwicke," *'arose from some determinations in the beginning of her reign by Holt, Chief Justice, that no action could be maintained on a prom- issory note nor declaration thereupon." " In these decisions Lord Holt denounced promissory notes as "only an invention of the gold- smiths in Lombard street." He declared that "to allow such a note to carry any lien [obligation] with it were to turn a piece of paper, which is in law but evidence of a parol contract, into a specialty."* And, in defiance of established rules. Lord Holt refused to allow to promissory notes the privilege of negotiability. Text of Statute of Anne. At this juncture, in confirmation of the ancient rule, and to meet the rule established by Lord Holt, the statute of Anne was enacted. It is so important, and so often referred to hereafter, that space is given to it. Its most important provisions are as follows: 10 Hill V. Lewis, 1 Salk. 132; WILLIAMS v. WILLIAMS (viz. Pascli. Term, 5 W. & M., anno 1692) Carth. 269; BKOMWICH v. LLOYD, 2 Lutw. 503. 11 WALMSLEY v. CHILD (anno 1749) 1 Ves. Sr. 346. 12 CLERK V. MAETIN. 1 Salk. 129, 2 Ld. Raymond, 757; Potter v. Pearson, 2 Ld. Raym. 759. * "The term 'specialty' is applied to an instrument which becomes effective by the mere fact of its formal execution. There are two classes of specialty contracts in the English law,— common-law specialties and mercantile special- ties. The first class includes bonds and covenants,— i. e. instruments under seal; the second class includes bills, and notes, and poUcies of Insurance, and possi- bly other mercantile Instruments. There is a prevalent notion, traceable to an opinion given in the house of lords in 1778, In the case of Rann v. Hughes, 7 Term R. 350, note, that only contracts under seal can be specialties; all other contracts, whether written or oral, being merely simple contracts. The fallacy of this notion Is easily demonstrable by an examination of the re- semblances between bills and notes and instruments under seal, on the one hand, and the differences between bills and notes and simple contracts on the other hand„ln those points in which specialties and simple contracts most strik- ingly differ from each other." 2 Ames, Cas. Bills & N. 872. § 1) OKIGIN OF NEGOTIABILITY. » "Whereas, it hath been held that notes in writing, signed by the party who makes the same, whereby such party promises to paj unto any other person, or his order, any sum therein mentioned, are not assignable or indorsable over, within the custom of merchants, to any other person; and that the person to whom the sum of money mentioned in such note is payable cannot maintain an action by the custom of merchants, against the person who first made and signed the same; and that any person to whom such note shall be assigned^ indorsed, or made payable could not, within the said custom of merchants, maintain any action upon such note against the person; who first drew and signed the same : Therefore, to the intent to en- courage trade and commerce, which will be much advanced if such, notes shall have the same effect as inland bills of exchange, and shall be negotiated in like manner, be it enacted, that all notes in writ- ing whereby any person shall premiss to pay to any other person,, his ordcx- or unto bearer any sum of money mentioned in the note shall be taies and construed to be payable to any such person to' whom the saane shall be payable; and also every such note shall be assignable or indorsable over in the same manner as inland bills: of exchange are according to the custom of merchants; and that the person to whom such sum of money is payable may maintain an ac- tion for the same as he might do upon an inland bill of exchange made, or drawn, according to the custom of merchants; and that any person to whom such note is indorsed, or assigned, or the money therein mentioned ordered to be paid by indorsement thereon, may maintain his action for such sum of money either against the person 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." Thus- by the statute of Anne the negotiability of notes was established^ Its principles have been followed and generally embodied in the stat- utes of the various states of the Union. And in the many cases- which arise with reference to the negotiability of instruments in forms of notes, the point is to determine whether they were such as were within the purview of the statute of Anne, or of the statutes; of the various states which have embodied the principles of the stat- ute of Anne. Construction of Statute of Anne — Non-negotiable Wotes. The statute of Anne, at the hands of the courts, has been con- strued with great latitude, a latitude in fact which renders some- 6 NEGOTIABILITY SO FAR AS IT EELATES TO BILLS AND NOTES. (Ch. 1 what inconsistent and irreconcilable the theories of negotiable and non-negotiable inatruments. The English courts after its enactment looted upon it as a remedial statute, as it undoubtedly was. But by a line of cases which seem to go beyond the utmost limits of its evident intendment, the courts also declared that non-negotiable notes came within the statute's provisions.^' A payee, they decided, could maintain an action within the statute against the maker, by which was meant only that the payee could declare upon the note, under the statute, instead of declaring upon the consideration or transaction which led to its being given. This interpretation, which in its inception was possibly an adaptation of an artificial system of pleading to business needs, has resulted in confusion- In New York,^* for instance, it seems to be the view of the courts that non- negotiable notes differ from negotiable ones only in two main par- ticulars. One is that the indorser is regarded as a maker or guar- antor, and not as a simple indorser; the other that the equities between the parties are not a subject of set-off when the instrument is transferred to a bona fide purchaser for value before maturity. Therefore in New York the general rule of contracts, that there cannot be a recovery upon them without proof of consideration, does not obtain vnth non-negotiable instruments, and the non-negotiable promise to pay money is itself presumption of a consideration.^* So, too, in Massachusetts, where, although the statute of Anne has never been enacted, its doctrines are regarded as declaratory of the common law," the early English rule is followed.^" The courts of 13 Kyd, Exch. (1790) 65; SMITH v. KENDALL, 6 Term R. 123; 1 Esp. N. P. 231; Burchell v. Slocock, 2 Ld. Eaym. 1545; MILLER v. BIDDLB, 13 Law T. (N. S.) 334. 1* Maule V. Crawford, 14 Hun, 193; Lee v. Swift, 1 Denlo, 565; Barrick v. Austin, 21 Barb.-241. 15 PRESIDENT, ETC., OF TURNPIKE ROAD v. HURTIN, 9 Johns. 217; KIMBALL v. HUNTINGTON, 10 Wend. 675; Paine v. Noelke, 53 How. Prac. 273; 3 Kent, Comm. 77; CARNWRIGHT v. GRAY, 127 N. Y. 92, 27 N. E. 835. The New York statute, which was a substantial re-enactment of the statute of Anne, has been replaced by Neg. Inst. L. § 320, by which the law In this respect, It seems, has been changed. 18 Richards v. Barlow, 140 Mass. 218, 6 N. E. 68. " TOWNSBND v. DERBY, 3 Mete. 363; DEAN v. OARRUTH, 108 Mass. 242. But in Massachusetts, In case of disputed consideration, the burden of §1) OEIGIN DP NEGOTIABILITY. 7 Connecticut, however, haTe adopted a different rule." With them, where the note is not negotiable, it is a mere contract between 1he original parties, not intended for transfer, and a consideration must be shown. This Is more consistent with the original intention of the statute. For one of the most marked distinctions between the custom of merchants and the rules of common law was in refer- ence to the assignment of contract rights. The custom of mer- chants aimed to shut out equities from following transfer. Accord- ing to that custom, want of consideration was no defense to an instrument in the hands of a bona fide holder, and hence, by way of corollary, came the doctrine that an expression of consideration in the instrument itself was wholly unnecessary. But this was con- fined to negotiable instruments. It did not include non-negotiable ones. JVbn-negotiahle ^iUs and Notes. Negotiability is not essential to the validity of a bill of exchange, and although it be payable to a designated person, and not to order or to bearer, it imports conaderation, and in an action by the payee consideration need not he averred or proved.* If, however, the instru- ment lacks any of the essential qualities of a bill of exchange, — ^for example, if it be drawn upon a particular fund, or be payable in an- other medium than money, — no presumption of consideration arises.^* Such instruments are, in general, mere assignments or orders. A num- ber of important distinctions between them and negotiable bills are to be pointed out: A person suing the acceptor must show funds in the acceptor's hands to pay,*" for the agreement is not an ac- ceptance, but a mere promise to pay, and must be based upon a suflScient consideration.''^ The acceptor cannot be sued upon the proof is on the plaintiff. Perley v. Perley, 144 Mass. 104, 10 N. JB. 726; Simpson V. Davis, 119 Mass. 269. But see Neg. Inst. L. | 320. 18 EDGEETON v. EDGEETON, 8 Conn. 6; BRISTOL v. WARNER, 19 Conn. 7; Daniels, Neg. Inst § 162; Pars. Bills & N. 227. * JOSSBLYN v. LACIER, 10 Mod. 294; AVEEBTT v. BOOKER, 15 Grat. (Va.) 163; Louisville, E. & St. L. R. Co. v. Caldwell, 98 Ind. 245; Arnold v. Sprague, 34 Vt. 402; Daniel, Neg. Inst § 161; 4 Am. & Eng. Enc. Law, 187. 19 Eaubitschek v. Blank, 80 N. Y. 479; AVERETT v. BOOKER, supra: Wells V. Brigham, 6 Cush. (Mass.) 6; Atkinson v. Manks, 1 Oow. (N. Y.) 691. 20 MUNGEE V. SHANNON, 61 N. Y. 251. 21 Atkinson v. Manks, 1 Cow. 691. 8 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. CCh. 1 bill, but upon the promise to pay evidenced by the acceptance. The acceptor is under no general liability to pay the bill in the first in- stance. Non-negotiable bills are assignments in the sense that they are directions to appropriate and hold the property specified in them to the use of a third person. The third person has them thus as- signed to him, and this whether they consist of the whole or part of the fiflid, and whether assented to or not by the drawee, as long as the drawee had notice of it.^^ They are treated as moneys or property held by the drawee for another.^' There are some features which non-negotiable bills and non-nego- tiable notes also have in common. When transferred, it is by opera- tion of the theory of assignment, and not of indorsement,^* and the fact of possession of either the bill or note is not evidence of such ti- tle that its mere production upon a trial is prima facie evidence of a right to recover. And, lastly, title to either a non-negotiable bill or note is subject to every equity. Under the strict common- law rule the indorsee of a bill or note, in its terms not negotiable, may sue his immediate indorser in his own name, but he can only sue the maker or remote indorser in the name of the original payee, except where special statute otherwise provides. , The indorser of paper not negotiable is only responsible to parties not immediate where he especially contracts to be so, being treated as guarantor or maker. And, lastly, an indorser of either cannot insist on de- mand and notice as a condition precedent.^" 2 2 Morton v. Naylor, 1 Hill, 583; Mandevllle v. Welch, 5 Wheat. 277; ROW V. DAWSON, 1 Ves. Sr. 331; Lett v. Morris, 4 Sim. 607; BRILL v. TUTTLE, 81 N. Y. 457; EHRICHS v. DB MILL, 75 N. Y. 370; Rohbins v. Bacon, 3 Greenl. (Me.) 346; Bank of Commerce v. Bogy, 44 Mo. 18. 2 3 Lowery v. Steward, 25 N. Y. 239, 243. 2i An assignment, as applied to bills and notes. Is the transfer, by writing, of an interest therein. Franlilin v. Twogood, 18 Iowa, 515. 26 Richards v. Warring, 4 Abb. Dec. 50; McMULLEN v. RAFFERTY, 89 N. Y. 456; CROMWELL v. HEWITT, 40 N. Y. 491; STORY v. LAMB, 52 Mich. 525, 18 N. W. 248; Shlnn v. Fredericks, 56 III. 439; Rabberman v. Muehl- hausen, 3 111. App. 326. §J 2-7) DISTINCTION BETWEEN ASSIGNABILITY AND NEGOTIABILITY. 9 DISTINCTION BETWEEN ASSIGNABILITY AND NEGOTIA- BILITY. S. Assignability pertains to contracts in general. 3. An assignment is the legal method of transferring property or rights evidenced by contract. 4. It is an impracticable method, as regards a circulat- ing medium, because: (a) Title created by assignment, as against the debtor, is not complete ■without notice to the debtor. (b) No subsequent purchaser of the property or right can acquire better title than that of his imme- diate assignor. 5. Negotiability pertains to a special class of contracts. 6-7. Negotiability facilitates their transfer as a circulat- ing medium, because: (a) The bona fide purchaser for value is presumed to be the true O'wner, and has good title. (b) Transfer is eflPected by indorsement or delivery. (c) In general, a consideration for the contractual re- lation is conclusively presumed as bet'ween par- ties not immediate. We purpose here to state briefly the fundamental reasons why negotiable bills and notes could not readily be transferred as a circulating medium under the rules governing the transfer of ordinary choses in action. The rights evidenced or created by ordinary contractual obligations are almost always a kind of property, having in themselves a value measured in law by the dam ages assessable upon their breach. This property may at this stage of the law pass from person to person just as any other property does. But there are well-settled rules governing such transfer, which are the outgrowth and mingling of early doctrines of the courts of common law and of equity, and at which the student must glance to understand the rules themselves. To this must also be added the statement that statutes, from time to time, have been largely instrumental in moulding these doctrines of common law and of 10 NEGOTIABILITY SO FAB AS IT EELATES TO BILLS AND NOTES. (Oh. 1 equity into ^^^ form wMch the theory of assignment of choses in action presents at the present time. Assigmnent. It was proljably the common-law rule in the first instance that no assignee of the benefits of a contract could sue for and recover them. The primitive view was, in the first place, that the contract created a strictly personal obligation between the creditor and tiie debtor, and also that the assignment of choses in action would increase lit- igation, — a reason which led the courts to set their faces resolutely against it*" And whether from reasons of business expediency, or liecause they were influenced by equitable doctrines, is not dear, but the courts of common law at an early day modified this rule into one that for a long time prevailed, namely, that an assignment of a contract might be made, but the assignee must sue for its ben- efit in the name of the assignor or his representatives. The theory was that the courts of common law would so far talre cognizance of equitable rights created by the assignment that the name of the assignor might be used as a trustee of the benefits of the contract for the benefit of the assignoe.^^ This doctrine has been generally modified by statutes, the commonest ones, in the United States, be- ing the provisions of the various Codes, — that "every action must be prosecuted by the real party in interest," and that the "transfer of every claim or demand passes an interest which the transferee may enforce by an action in his own name, as the transferrer might have done." With courts of equity, it is true, the rule was dif- ferent. For in equity, from immemorial times, the assignment of a chose in action or of the benefits under a contract has been per- mitted, and the assignee could maintain a duit in equity in his own name.*' But, however salutary the operation of this equitable rule might have been in some phases of the enforcement of contract rights, it could have had little influence with bills and notes. Cases arising upon them came within the cognizance of the courts of com- mon law. And there are cases to show that even when the as- 26 Pol. Cont 207; Beecher v. Buckingham, 18 Conn. 110. ST Caister v. Eccles, 1 Ld. Eaym. 683; McWILLIAM v. WEBB, 32 Iowa, 577; Halloran v. Wiltcomb, 43 Vt. 306; Pay v. Guynon, 181 Mass. 31. 2 8 Smith V. Brlttain, 3 Ired. Eq. (N. J.) 347; TIBBETS v. GEERISH, 25 N. H. 41. •§§ 2-7) DISTINCTION BETWEEN ASSIGNABILITY AND NEGOTIABILITY. U signed non-negotiable promise was to pay a sum of money to the promisee, or to hearer, or to order, or where, by any other form of words, the instrument purported to be made assignable, eyen then the holder could not sue in his own name, but only in that of his assignor.'" This objection, inasmuch as it related only to the form of action, was not of vital importance. Yet were it the rule that the transferee of negotiable instruments must sue in the name of their transferrers, it would certainly dog their circulation, since it would complicate and render less certain the recovery of judgments upon them. There were other rules relating to the transfer of ordinary con- tracts, governing alike courts of common law and equity, which were of greater practical importance. The first is the doctrine of inotice. The rule governing assignment, as stated in the principal text, is that title by assignment, as against the debtor, is not com- plete without notice to him. As the result of this rule, follows the one that a debtor who performs his contract to the orig- inal creditor, without notice of any assignment by the creditor to another person, is released from his obligation under it.'" An illustration of this principle is a well-known case where a bond and mortgage had been given, and assigned by various intermediate as- signments, not recorded until some nine years afterwards. At that time the mortgage was attempted to be foreclosed by the true owner. ' In the meantime the mortgagor had made various payments upon the mortgage, and finally had paid it up in full to the original mort- gagee, some three years before the foreclosure. These payments, on the mortgagor's part, were made without notice or knowledge of the assignments. And upon these facts it was held that the mort- gagor was to be protected, and would even have been protected if the assignments had been recorded, because notice must be given -or brought home to the mortgagor not to pay the original mortgagee, 'else payments to such mortgagee on account of the mortgage are 2» COOLIDGB v. KUGGLES, 15 Mass. 387; CLARK v. KING, 2 Mass. 524; Weidler v. Kauffman, 14 Ohio, 455; Jones v. Carter, 8 Q. B. 134. 80 Judson V. Corcoran, 17 How. 612; VAN BTJSKIRK v. INSURANCE CO., 14 Conn. 141; Smith v. Ewer, 22 Pa. St. 116; MERCHANTS' AND MECHAN- ICS' BANK V. HEWETT, 3 Iowa, 93; Winberry v. Koonce, 83 N. C. 351; Hob- :Son V. Stevenson, 1 Tenn. Oh. 203; Richards v. Griggs, 16 Mo. 416. 12 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. (Ch. 1 perfectly yalid." This is the logical outgrowth of the theory of assignment, as explained in the English case of Stocks T. Dob- son.'" "The debtor," said the court, "is liable at law to the as- signor of the debt, and at law must pay the assignor if the as- signor sues in respect of it. If so, it follows that he may pay with- out suit. The payment of the debtor to the assignor discharges the debt at law. The assignee has no legal right, and can only sue in the assignor's name. How can he sue if the debt has been paid? The law, therefore, has required notice to be given to the debtor of the assignment, in order to perfect the title of the assignee." There is another feature of assignments to be considered. It is true that the courts in many of the states at the present day will de- cline to examine into the consideration of the assignment of an or- dinary contract, holding that a payment of it by the debtor to the person who holds the rights under a valid assignment will release the debtor from his liability. °* But it was probably the common- law rule, and certainly the equity rule, that an assignment would not be supported unless consideration had been given by the as- signee.'* NegotiahiliPy . >■ The rules in regard to negotiability are in sharp contrast with these principles governing assignments. If a negotiable bill or note is made payable to bearer, or indorsed in blank, the debtor is prima facie pro- tected in payments made to the person who has the instrument in his possession."* The person having the instrument in his possession is, under such circumstances, presumed to own it, and to have a legal right to it." A purchaser in good faith from one who has stolen it 81 Van Keuren v. Corking, 66 N. Y. 77. 8 2 Stocks V. Dobson, 4 De Gex, M. & G. 15. 83 Sheridan v. Mayor, etc., 68 N. Y. 30; Burtnett v. Gwynne, 2 Abb. Prac. 79; Stone V. Frost, 61 N. Y. 614; Allen v. Brown, 44 N. Y. 228; Durgin v. Ireland,. 14 N. Y. 322. 3* Anson, Cont. p. 222. SB Pettee v. Prout, 3 Gray, 502; Way v. Richardson, Id. 412; Garvin v. WisweU, 83 111. 215; Jewett v. Cook, 81 111. 260; COLLINS v. GILBERT, 94 U. S. 753; Rubey v. Culbertson, 35 Iowa, 264; Ecton v. Halan, 20 Kan. 452; Wells- V. Schoonover, 9 Heisk. 806. 3 8 Wilson Sewing-Mach. Co. v. Spears, 50 Mich. 534, 15 N. W. 894; First Nat. Bank v. SoUenberger, 1 Lancast. Law Rev. 75. §§2-7) DISTI.V CTION BETWEEN ASSIGNABILITY AND NEGOTIABILITY. 13 acquires a valid title." If these were not the rules every bank or merchant who took the instrument, and gave money or value for it, would be compelled to make inquiries, and also give notice of owner- ship of the instrument to all prior parties, in order to prevent the in- strument being paid to some one else. Several results would in- evitably flow from these conditions. Business men would decline to take such trouble. This friction would check the circulation of bills and notes, and destroy their effectiveness as a quasi money. And thus, so far as negotiable bills and notes could aid it, credit would no longer be as good as cash in the commercial markets of the world. Equities ietween Prior Parties. The last and perhaps most important distinction made between the transfers of non-negotiable contracts and those of negotiable bills and notes is that in case of the former the assignee takes subject to the equities or defenses existing between the prior parties, while the bona fide holder of a negotiable instrument may disregard these equities, and recover upon suit the full amount called for by the instrument he buys. According to the Honorable Theodore I>wight,°* the assignee of a non-negotiable contract takes subject, not only to the equities existing between the original parties, but also must al- ways abide the case of the person from whom he buys. The holder of a chose in action cannot alienate anything but the beneficial in- terest he possesses.'' It is a question of power or capacity to trans- fer to another, and that capacity is to be exactly measured by his own rights. This is undoubtedly the law in England and in New York, though in many of the states of the Union the great authority of Chief Justice Kent has prevailed to limit the equities to those existing between the original parties, and does not extend them to those existing in favor of third parties. The technical or theoret- 37 Spooner v. Holmes, 102 Mass. 503; Birdsall v. Russell, 29 N. Y. 220; BVBBTSON v. BANK, 66 N. Y. 14. See, also, post, p. m. 3 8 Trustees of Union College v. Wheeler, 61 N. Y. 88. 3 9 WAKNBK V. WHITTAKEE, 6 Mich. 133; Seligman v. Ten Eyck's Estate, 49 Mich. 104, 13 N. W. 377; Shotwell v. Webb, 23 Miss. 375; Howell v. Medler, 41 Mich. 641, 2 N. W. 911; Ayres v. Campbell, 9 Iowa, 213; TIMMS v. SHAN- NON, 19 Md. 296; State Mut. Fire Ins. Co. v. Roberts, 31 Pa. St. 438; Cary v. Bancroft, 14 Pick. 315; Harwood v. Jones, 10 GUI. & J. 404; Scott v. Schreeve, 12 Wheat. 605. 14 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AlTD NOTES. (Ch. 1 ical reason of the rule is that given by Judge Story.*" "Every aa- Bignment of a chose in action is considered in equity as in its nature amounting to a declaration of trust and to' an agreement to permit the assignee to make use of the name of the assignor in order to recover the debt, or to reduce the property into possession." This theory leads to the conclusion that the action by the assignee must be precisely commensurate with that of the assignor, as it must be in his name, and on the supposition that, for the purposes of the action, he is still the owner. INDICIA or NEGOTIABILITY. 8. The instrument must contain express words of nego- tiability, although, there is no set form of such expression. It is enough if the intention of the parties to make it ne- gotiable can be fairly construed from the terms of the contract. 9. The usual form of making an instrument negotiable is making it payable either (a) To order, or (b) To bearer.** It is the purpose of these sections to explain what form of words, when they occur in an order or promise to pay money, makes that order or promise a negotiable one; or, in other words, what are the indicia of negotiability. As has been said, negotiability is the peculiar theory of the law merchant, and the law merchant has as its source the usages of trade, which have been recognized and formulated into rules of law by the courts, and sometimes declared, and even modified, by statute. The first question, then, is, what indicia are declared by the stat- utes to confer negotiability upon orders or promises to pay money? These indicia consist in the first place in certain words or phrases created by and appearing in the statute itself. The statute of Anne, for example, declares, in words, that "all notes whereby one *o story, Eq. Jur. § 1040. *i Mcmullen t. EAFFBRTY, 89 N. Y. 456; CROMWELL v. HEWITT, 40 N. Y. 491, t§ 8-9) INDICIA OF NEGOTIABILITY. 15 doth promise to pay to any other person, his order, or unto feearer, shall be assignable or indorsable over as inland bills of exchange^ according to the custom of merchants." ** In Tery many states these words of the statute of Anne, or words- quite similar to them, have been re-enacted. In some states, in ad- dition to the foregoing phrases, specified in the. statute of Anne, peculiar phrases are essential to negotiability. In some states nego^ tiability has been limited to notes containing, the words "without defalcation and diseouht." *' In Alabama** only bills of exchange and promissory notes payable in money at a bank, or private banking house, or other place of payment expressed, are made negotiable, and governed by the law merchant; other contracts in writing being as- signable subject to defenses.*^ In Indiana *° promissory notes, to be negotiable independent of equities, must be payable to order or bearer at a bank in Indiana. In Kentucky " only such promissory notes as are made payable and negotiable at a bank incorporated by the state law, and are indorsed and discounted by such bank or some other bank in Kentucky, are negotiable like foreign bills of exchange; all other bills and notes are assignable subject to defenses.*^ And to deter- mine whether an instrument contains the quality of negotiability, we must first turn to the statute of the state, and, if there appear upon the face of the instrument the phrases authorized by the statute, then, oth- er things being equal, the instrument is negotiable. And, as appears hereafter, except in the case of a restrictive indorsement, an instru- ment once stamped by the original parties with the character of nego- tiability in most cases cannot be deprived of this characteristic, but remains so despite the subsequent agreement or conduct of the parties transferring it. » 42 GOODWIN V. KOBARTS, L. K. 10 Exch. 337, Johns. Cas. BUls & N. 3. See Neg. Inst. L. § 20. 43 See Eand. Com. Paper, § 86. a Code, §§ 1756, 1757. 46 See GATES v. BANK, 100 TJ. S. 239. 48 Horner's Rev. St. § 5506. 47 St. § 483. 48 St. § 474. It is impossible in a work of this character to enumerate or dis- cuss the various statutory provisions peculiar to different states. They are collected in Eand. Com. Paper, §§ 96, 128, 174. In many states such provision* 16 NEGOTIABILITY SO FAR AS IT RELATES TO BILLS AXD KOTES. (Ch. 1 While it is unquestioned that bills and notes, correct in other re- spects, drawn in the words of the statutes, are negotiable, those words are not the only forms of words which will confer negotia- bility. Some express words are, however, necessary to confer this quality. A note in words,** "8 months after date, we promise to pay G. H. |275, for value received," was held not a negotiable note, because the statute directed words of negotiability. But the true reason is that laid down by Lord Holt,"" given in a case where the words "or his order" were omitted from a bill. "And the chief justice did agree that the indorsement of this bill did not make him that drew the bill chargeable to the indorsee, for the words 'or his order' did give authority to assign it by indorsement, and it is an agreement by the first drawer that he would answer it to the as- signee." What words will then be deemed by the courts to confer negotia- bility? "Whether the parties to an instrument can give it a nego- tiable character, with all the incidents pertaining to negotiable paper, when it is not in terms within the class of instruments known to the law as 'negotiable,' may be questioned," says Allen, J., in EVERTSON V. NATIONAL BANK." But, however this may be with instruments intended to be other than orders or promises for the payment of money alone, still it is probably the rule that, in the instru- ments governed by the rules of the law merchant, any words in a bill or note whence it can be inferred that the person making it intended it to be negotiable, will give it a transferable quality against that person." have been repealed by enactment of the Negotiable Instruments Law. See section 20 et seq. *9 Maule V. Crawford, 14 Hun (N. Y.) 193. See, also, EOBINSON v. BROWN, 4 Blackf. (Ind.) 128; '"Fernon v. Farmer, 1 Har. (Del.) 32; Yingling v. Kohlhass, 18 Md. 148; Barriere v. Nairae, 2 Dall. 249; Whitwell v. Winslow, 134 Mass. 343; American Bxch. Bank v. Blanchard, 7 Allen, 333; Fawsett v. National Life Ins. Co., 97 111. 11; Lowy v. Andreas, 20 111. App. 521. 60 Hill V. Lewis, 1 Salk. 132. Bi 66 N. Y. 18. See, also, CROUCH v. CREDIT FONCIER OF ENGLAND, L. R. 8 Q. B. 374; HASEY v. SUGAR CO., 1 Doug. (Mich.) 193; Robinson v. Wilkinson, 38 Mich. 299; Almy v. Winslow, 126 Mass. 342; Grinnell v. Baxter, 17 Pick. (Mass.) 386; DAGGETT v. DAGGETT, 124 Mass. 149; .Tudson v. Gookwln, 37 111. 286. 5 2 U. S. V. White, 2 Hill (N. Y.) 59; GIBSON v. MINET, 1 H, Bl. 569; ME- CHANICS' BANK V. STRAITON, 3 Abb. Dec. (N. Y.) 269. § 10) PURPOSE OF NEGOTIABILITY. 17 This is probably the better rule, although it was the former English rule that, unless a bill or note be payable to order or to bearer, it was not negotiable. The interest of the parties should, and probably would, override the form of words, and if the court can determine from the words used that, as a matter of fact, it was the intention of both of the parties, the one to assume the rights of a holder of a negotiable instrument, and the other to incur the liabilities of a party thereto, and the instrument in other essential respects con- tains the elements of a negotiable bill or note, the instrument would probably be treated as negotiable although formally incorrect. PURPOSE OF NEGOTIABILITY. 10. Negotiable bills and notes in some respects play the part of money in business affairs. The fundamental pur- pose of negotiability is to endow them with all qualities necessary for a limited commercial medium.^ Bills and notes have become, under the development which they have undergone in the courts of England and America, a sort of money, — a medium of exchange possessing the advantages of a perfectly flexible paper currency.^* The rules which the courts have worked out all point largely to one end, — the protection of the bona fide holder so far as that is consistent with justice to the other parties to the in- strument. It is necessary, as we shall hereafter see, that the order or promise contained in a bill or note should be definite, so that the person receiving it in exchange for merchandise or other value may know that he is receiving a right that is equivalent to value; that it should be for money only, because, from a commercial as distinguished from an economic standard, money is the only thing in business whose i!3 Illustration of the use of a negotiable Instrument as a circulating medium: If A and B are in England, and C in Jamaica be indebted to A £1,000, and B be going to Jamaica, lie may pay A tliis £1,000 and talje a bill of exchange drawn by A in England upon C in Jamaica. B, on his way to Jamaica, may be paid the £1,000 for the bill by D in New York, and indorse It to him; D may be paid for the bill £1,000 by B in Charleston, and indorse it to him; and E will collect the money of C, to whom it is presented for acceptance, in .Tamaica, and who accepts it. See EirSSELL v. WHIPPLE, 2 Cow. (N. T.) 536; Durgin v. Bartol, G4 Me. 473; GOODWIN v. EOBARTS, L. R. 10 Exch. 337, Johns. Cas. Bills & N. 3. 54 Bills of exchange and promissory notes are representatives of money, cir- NEO.BILI.S.— 2 18 NBGOTIABILITy SO FAK AS IT RELATES TO BILLS AND NOTES. (Ch. 1 value does not fluctuate. And so, through the entire system, in laying down their rules, the courts have asked themselves these questions: Is the application of the rule just for all parties, and, all things being considered, the most expedient for commerce? And, second, is the i-ule such that a person taking the bill or note in exchange for some- thing of value will be protected in the enforcement of the bill or note, as a legal right, if it ia not paid? This idea once understood by the student, the scattered and seemingly irrelevant rules become consec- utive parts of a consistent theory. Probably the primary object of negotiability is to give to bills or notes the effect which money, in the shape of government bills or notes, plays in commercial transactions. These last are an unques- tioned medium of payment for debts, or for the transfer of property or rights. They are such an unquestioned medium because the credit or solvency of the government, which has caused them to be issued, is behind them. It is the distinct promise of a whole nation to exchange for the bill or note itself, in precious metal, a sum of money intrinsic- ally worth its face. A man's credit is rated at the amount of property or valuable rights he has or can procure. He makes this credit available in his bill or note because his credit is its guaranty of future payment. The elements of credit may be either his earning capacity or the accumu- lated property he owns. Business men rely upon these as the source of probable future payment. And so the merchant sells goods, and the bank discounts for the seller the buyer's note or draft. And busi- ness men who have no property in cash are by means of credit enabled to conduct and carry to completion business and commercial enter- prises. Other business men will take these promises of men of un- doubted credit, and treat them as cash. Thus we see bills and notes going from hand to hand in the commercial markets, and credit taking the part of money in commercial transactions. And here, perhaps, as a part of this theory of negotiability, it is well to show how far and ander what circumstances courts have treated negotiable instruments as liquidation of indebtedness. culating in the commercial world as such. PRIBDLANDER v. RAILWAY CO., 9 Sup. Ct. 570, 130 TJ. S. 416; Id., Johns. Cas. Bills & N. 11. For a comparison jl the English, or banking or currency, theory of bills of exchange with the French, or mercantile, theory, see CJhalm. Bills & N. (3d Ed.) introduction. ;§ 11) PAYMENT BY NEGOTIABLE INSTRUMENT* 19' PAYMENT BY NEGOTIABLE INSTEUMENT. 11. The common rules regarding a negotiable instru- ment as a medium of payment are as follows: (a) Where a negotiable instrument to -which the debtor- is a party as dra"wer, acceptor, maker, or in- dorser is received for a debt, -whether precedent or contemporaneous, in the absence of agree- ment to the contrary a presumption arises in most jurisdictions that the instrument is received in conditional, and not in absolute, payment. (b) Where a negotiable instrument to -which the debtor is not a party is received for a debt, in the ab- sence of agreement to the contrary a presump- tion arises in most jurisdictions that the instru- ment is received in conditional payment if the debt -was precedent; but that it is received in ab- solute payment if the debt be contemporaneous. Whether a payment by bill or note is absolute (that is, in extinguish-- ment of the debt) or conditional (that is, in extinguishment of the debt only on condition that the bill or note be paid ait maturity) is to be determined by the intention of the parties; and if their intention has been expressed, or can be gathered from the circumstances, it will al- ways govern. But, in the absence of agreement, express or implied,, certain presumptions as to the intention of the parties have become established. It is said on high authority that in refusing to hold that acceptance of a bill or note, as in case of acceptance of an instrument under seal, works an extinguishment and merger of the debt in the new security, the courts have failed to give full effect to the custom of merchants." Certain it is that for lack of a guiding principle the courts have been led into hopeless confusion in their efforts to arrive at the presumed intention of debtors and creditors. It is believed, however, that the preponderance, if not the weight, of authority will, be found to support the rules stated in the principal text »» ? Ames, Cas. Bills & N. 874. 20 NEGOTI ABILITY SO FAR AS IT RELATES TO BILLS AND NOTES. (Ch. 1 Proceeding upon the theory that bills and notes in this respect are not specialties, but simple contracts, and because a simple executory contract is not extinguished by acceptance of another, it is gener- ally held that, in the absence of agreement to that effect, acceptance of a bill or note of the debtor on account of the debt does not extin- guish it. Yet the taking of the bill or note is not without effect upon the right of the creditor to enforce his debt. His remedy for its en- forcement is suspended; but, if the bill or note is dishonored, his right to sue on the original debt revives. In other words, the presumption arises that the payment is conditional. °° So, where a bill or note of the debtor is accepted on account of a contemporaneous debt, — as upon a sale of goods, — the same presumption, though perhaps with even less reason, is held to arise. °^ The same rule prevails where the debtor gives on account of a precedent debt the bill or note of a third person, whether the paper be indorsed by the debtor or be simply pay- able to bearer, and without the debtor's indorsement.'* Where, how- ever, the debtor gives the bill or note of a third person on account of a contemporaneous debt, a distinction is drawn between paper indorsed by the debtor and paper payable to bearer, or indorsed in blank by the payee or drawee, but without the indorsement or guaranty of the debtor. In the first case the general rule holds good, such paper being regarded in the same light as a bill or note to which the debtor was an original party; "' but in the second case the usual presumption is re- versed, and the creditor is presumed to accept the paper in absolute 6 8 CLARK V. MTJNDAIi, 1 Salk. 124; Richardson v. Rickman, cited In 5 Term E. 517; PRICE v. PRICE, 16 Mees. & W. 232; Bank of United States v. Daniel, 12 Pet. 32; Lewis v. Davisson, 29 Grat. 266: McLaren v. Hall, 26 Iowa, 298; Archibald v. Argall, 53 111. 307; Logan v. Attix, 7 Iowa, 77; Jones v. Shawhan, 4 Watts & S. 261; Lee v. Green, 83 Ala. 491, 3 South. 785; McGuire v. Bid well, 64 Tex. 43; Henry v. Oonley, 48 Ark. 271, 33 S. W. 181; Hopkins v. Detwiler, 25 W. Va. 748; Selby v. McCuUough, 26 Mo. App. 67; Riverside Iron-Works v. Hall, 64 Mich. 168, 31 N. W. 152; Geib v. Reynolds, 35 Minn. 331, 28 N. W. 923; Merrick v. Boury, 4 Ohio St. 60; Cole v. Sackett, 1 Hill (N. Y.) 516. 07 Sheehy v. Mandeville, 6 Cranch, 253. See Daniel, Neg. Inst. § 1261. 6 8 WARD V. EVANS, 2 Ld. Raym. 928; Ex parte BLACKBURN, 10 Ves. 204; Downey v. Hicks, 14 How. 249; Gallagher v. Roberts, 2 Wash. C. C. 191, Fed. Cas. No. 5,195; Noel v. Murray, 13 N. Y. 167; Gordon v. Price, 32 N. C. 388; McGinn v. Holmes, 2 Watts (Pa.) 121; Dougal v. Cowles, 5 Day ^Conn.) 511; Slocumb v. Holmes, 1 How. (Miss.) 139; Case v. Hall, 5 Mo. 59. 69 Monroe v. HofE, 5 Denio (N. Y.) 360; Shriner v. Keller, 25 Pa. St. 61. § 11) PAYMENT BY NEGOTIABLE INSTRUMENT. 21 payment. °° "I am of the opinion, and always was," said Lord Holt, "notwithstanding the noise and cry that it is the use of Lombard street, that the acceptance of such a note [the note of a third person, payable to bearer] is not actual payment. Taking a note for goods sold is payment, because it was part of the original contract; but paper is no payment where it was a precedent debt. For when such a note is given in payment, it is always to be taken under this condi- tion: to be payment if the money be paid thereon in convenient time." °^ These various presumptions, since they rest on the pre- sumed intention of the parties, may all be rebutted by evidence show- ing a different intention on their part. In some jurisdictions, on the other hand, the ordinary rule is reversed, and, where a promissory note or bill of exchange is given on account of indebtedness, the pay- ment is presumed to be absolute, though this presumption may be re- butted.'"' The rule that a bill or note is presumed to be merely conditional payment is, of course, applicable where the instrument is accepted in renewal of one already due, which is not surrendered.'" 60 WARD V. EVANS. 2 Ld. Raym. 928, per Holt, C. J.; CLARK v. MUNDAL, 1 Salk. 124; 12 Mod. 203; BANK OF ENGLAND v. NEWMAN, 1 Ld. Raym. 442; Whitbeck v. Van Ness, 11 Johns. (N. T.) 409; Gibson v. Tobey, 46 N. Y. 637; Bicknall v. Waterman, 5 R. I. 43. 61 WARD V. EVANS, supra. 62 Fowler v. Bush, 21 Pick. (Mass.) 230; Ely v. James, 123 Mass. 44; O'Con- ner t. Hurley, 147 Mass. 149, 16 N. E. 764; Gooding v. Morgan, 37 Me. 419; CoUamer v. Langdon, 29 Vt. 32; Olvey v. Jackson, 106 Ind. 286, 4 N. E. 149. 63 Bishop v. Rowe, 3 Maule & S. 362; Cumber v. Wane, 1 Strange, 426; Woods V. Woods., 127 Mass. 141; East River Bank v. Butterworth, 45 Barb. 470. 212 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 CHAPTER H. "OF NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSENTIAL REQUISITES. 12. Definition and Forms of Bills of Exchange, 13. Definition and Form of Note. 14. Essentials of Bill or Note. 15. Order Contained in Bill. 16. Promise Contained in Note. 17-20. Certainty as to the Terms of the Order or Promise. 21-25. Payment of Money Only. 26-30. Specification of Parties. 31-33. Capacity of Parties. 34. Authority of Agent. 35-37. Delivery of Instruments. 38. Date. 39. Value Received. 40. Days of Grace. DEFINITION AND FORMS OF BILLS OF EXCHANGE. 12. A bill of exchange is an unconditional order in -writ- ing upon one person by another for the payment of a sum of money absolutely and at all events.' Bills of exchange are classified as foreign bills and iu- lland bills. The following is a common form of foreign bill of exchange in & set: Buffalo, N. T., U. S. A., June 15, 1891. First Exchange for London q ^ Thirty days after Bigllil of thi^First of Exchange (Second and © Third Unpaid) pay to ^le ordg- of JOHN SMITH Five Hun- 10 dred Pounds Sterling.njilue r^eived, and charge the same to 5fl account of O = THOMAS ROBINSON. To Baring Bros. & Co.^ J London, Eng. 1 This definition Is that of Judge Chalmers (Bills & N. art. 1). See Neg. Inst. Hi. § 210. The student is recommended, however, to fix in his mind rather the § 12) DEFINITION AND FORMS OF BILLS OF EXCHANaB. 23 Buffalo, N. T., TJ. 8. A., June 15, 1891. Second. Exchange for London. Thirty days after sight of thia Second of Exchange (First and © Third Unpaid) pay to the order of JOHN SMITH Five Hun- JU dred Pounds Sterling, value received, and charge the same to « account of THOMAS ROBINSON. To Baring Bros. & Co., London, Eng. Buffalo, N. T., TT. S. A., June 15, 1891. TMrd. Exchange for London. Thirty days after sight of this Third of Exchange (First and © Second Unpaid) pay to the order of JOHN SMITH Five Hun- iQ dred Pounds Sterling, value received, and charge the same to « account of THOMAS ROBINSON. To Baring Bros. & Co., London, Eng. The following is a usual form of an inland bill: $500.00. X o Buffalo, June 15, 1891. Thirty days after sight pay tUJthe or« r of JOHN SMITH Five Hun- dred Dollars, value received, sCd charSi to account of O " THOMAS ROBINSON. To Baring Bros. & Co., q ~ New York City.< S The parties to the foregoing bill are technically termed: (a) The drawer, or the party who orders the payment of the money in the bill, e. g. Thomas Robinson, (b) The drawee or the party to whom the order is directed, e. g. Baring Bros, (c.) The acceptor, or the drawee when he has assented to the order, and thus become the principal debtor on the bill, e. g. Baring Bros, (d) The payee, or the party in whose favor the order is made, e. g. John Smith. These are the parties to the bill in its origin. There are also subsequent parties: (e) The holder, or the person having legal possession of the bill, who, when it is negotiable, may recover the amount of the same. This term includes payee, indorsee, and bearer, (f) The in- dorser, or one who directs the amount of the bill to be paid to a person in the indorsement named, or to his order or to bearer, (g) statement of the essential elements of bills as given In section 14, than the forjniJlated definition. 24 OF NEGOTIABLE BIIXS AND NOTES. C^h. 2 The indorsee, or one who makes title to the bill through the indorse- ment. A bill of exchange is usually called among business men a "draft." When duly accepted, it is called an "acceptance." Under the English law, bills drawn or payable abroad, or, until quite recent times, drawn in England and payable in Scotland or Ireland, or vice versa, were foreign bills. Bills drawn and payable either in England or Wales were inland bills. In the United States the general rule is that a bill drawn in one state and payable in another is a foreign bill,^ the theory being that the several states, retaining in themselves the power to make local business regula- tions and laws, are thus far separate and independent sovereignties, and to be so viewed in the decision of points involved in the law merchant. Aside from these local regulations, the principal differ- ence in the United States between the foreign and inland bill is that to charge the drawer and indorsers the former on dishonor re- quires protest by a notary public, the latter does not.* In the case of international foreign bills, a further usage of long standing has existed, arising from the difflculty of communication in former times between different nations and the danger of loss in transmission. It is to draw the bill in a set of three or four parts, each a counter- 2 Halliday v. McDougall, 20 Wend. 81, 22 Wend. 264; COMMERCIAL BANK V. VARNUM, 40 N. Y. 209; DICKINS v. BBAL, 10 Pet. 572; Bank of United States V. Daniel, 12 Pet. 32; Phoenix Banli v. Hussey, 12 Picli. 483; Grimshaw v. Bender, G Mass. 157; Barclay v. Mlnchin, Id. 162. Unless the contrary ap- pears on the face of the bill, it will be deemed an inland bill. Where a bill was drawn and dated in Philadelphia, and payable and delivered In London, held that the drawer was liable in damages to the holder as on a biU drawn and delivered in Philadelphia. LENNIG v. RALSTON, 23 Pa. St. 137. And a bill dated and payable in Illinois was held, even between the orig- inal parties, an inland bill, though drawn and delivered in Wisconsin, such being the agreement as shown by the face of the instrument. Strawbridge V. Robinson, 5 Gilman (tu.) 472. That the bill was drawn or is payable In an- other country or state must distinctly appear. Thus a bill dated at Dublin or New Orleans would be presumed in New York, In the absence of proof to the contrary, to be an Inland bill, the courts not taking judicial notice of the divi- sions of foreign states. Kearney v. King, 2 Barn. & Aid. 301; Riggin v. Col- lier, 6 Mo. 568; Yale v. Ward's Ex'r, 30 Tex. 17. See Neg. Inst. L. § 213. 3 Union Bank v. Hyde, 6 Wheat. 572; BURKE v. McKAY, 2 How. 66; Young V. Bryan, 6 Wheat. 146. See collated cases, footnote to Wood's Byles, Bills & N. p. 261. § 13) DEFINITION AND FORM OF NOTE. 25 part of the other, except that in each part of the set is incorporated a condition that that particular bill shall be payable only provided all the others remain unpaid. This condition operates as a notice to the acceptor to accept and pay but one bill, and he and the drawer are liable upon but one bill; for it is well-settled law that a pay- ment of one of a set operates as a discharge of the rest. The whole set collectively is deemed to amount to but one bill.* The rule that a payee or subsequent indorser, who indorses two or more parts of a bill to separate indorsees, is liable on indorsement to each sep- arate indorsee operates as a check to the improper circulation of the bill.^ The transferrer is bound to pass over upon transfer all parts ofthe bill in his possession, and thus the circulation of these instruments may be eiJected with safety.* DEFINITION AND FORM OF NOTE. 13. A promissory note is an unconditional -written prom- ise, signed but not sealedf by the maker, to pay absolute- ly and at all events a sum certain in money, either to the bearer or to a person therein designated or to his order." * 3 Kent, Comm. 109; Wells v. Whitehead, 15 Wend. 527; Durkin v. Crans- ton, 7 Johns. 442. See DOWNES v. CHURCH, 13 Pet. 205. s HOLDSWORTH v. HUNTER, 10 Barn. & C. 449. So, if the drawee accepts more than one part, he is liable on each to a bona fide holder. Id. * Pinard v. Klockmann, 3 Best & S. 388, 32 Law J. Q. B. 82. See Neg. Inst. L. §§ 310-315. 1 t A bill or note loses its negotiable character if under seal. CLARK v. MAN- UFACTURING CO., 15 Wend. (N. Y.) 256; MUSE v. DANTZLER, 85 Ala. 361, 5 South. 178; BROWN v. JORDHAL, 32 Minn. 135, 19 N. W. 650; Talbott v. Suit, 68 Md. 443, 13 Atl. 356; D. M. OSBORNE & CO. v. HUBBARD, 20 Or. 318, 25 Pac. 1021. This rule has generally been held inapplicable to bills and notes of corporations. Jackson v. Myers, 43 Md. 452; WEEKS v. ESLER, 143 N. Y. 374, 38 N. E. 377; Central Nat. Bank v. Railroad Co., 5 S. C. 156; In re Imperial Land Co., L. R. 11 Eq. 498. In some states by statute the presence of a seal is declared to have no effect on the character of the instrument. See Neg. Inst. L. § 25, subd. 4, to this effect. See Rand. Com. Paper, §§ 70-74. 6 Chalm. Bills & N. art. 271; Edw. Bills & N. § 134; Byles, Bills (Wood's Ed.) p. 41; Daniel, Neg. Inst. § 28; Neg. Inst. L. § 320. The student is here recom- mended to fix in his mind rather the statement of the essential elements of a note than the formulated definition. 56 OF NEGOTIABLE BlLLS AND NOTES. (Ch. 2 A common form of note is: ji 1500.00. Buffalo, June 15, 1891. 5 Thirty days after date I promise to pay to the order of JOHN g SMITH Five Hundred Dollars, value received, at Bank of Buf- « ffllo. THOMAS KOBINSON. The parties to the foregoing note are technically termed: (a) MAKEE — The person who signs the note and makes the promise; e. g. (Thomas Eobinson.) (b) PAYEE — The person in whose faror the promise contained in the note is made; e. g. (John Smith.) The foregoing are parties to the note in its origin. There are also subsequent parties. They are: . (a) HOLDEE — The person having legal possession of the instru- ment, who, when it is negotiable, may recover the amount of same. This term includes payee, indorsee, and bearer. (b) INDOESER — One who directs the amount of the bill or note to be paid to a person in the indorsement named, or to his order, or to bearer. (c) INDOESEE — One who makes title to the instrument through the order specified in the indorsement. ESSENTIALS OE BILL OB, NOTE.* 14. To be a negotiable bill of exchange or promissory mote, the instrument must have the following essential -characterietics : (a) The bill must contain an order. (b) The note must contain a promise. (c) The order or promise must be unconditional. (d) It must be an absolute order or promise for the payment of money alone. (e) The amount of money must be certain. (f) The time of payment must be a time certain to arrive. (g) The instrument must be specific as to aU its parties. (h) The instrument must be deUvered. * See Neg. Inst. L. § 20. 5 15) ORDER CONTAINED IN BILL. 27 OB.DEB CONTAINED IN BILL. 15. An order means any form of words implying a right on the part of the dra^srer to command, and a correspond- ing duty on the part of the drawee to make, the payment specified. Our purpose here is to illustrate the difference between a man- datory form of words directing payment and a mere request. The theory of a bill of exchange is that the drawer has funds in the hands of tbe drawee, which he orders or directs to be delivered or paid over to the payee or indorsee of the bill.' Hence, where the instrument is so written as to show that the drawer has or attempts to exercise no right to order the money paid, it is not a bill of exchange.' To determine whether or not the instrument is so written is, of course, a question purely of the construction of the instrument. Parol evi- dence cannot be admitted, since, if the bill is to operate as money, the instrument must be pronounced to be a bill or not according to its face. The point to be determined is whether the terms of the instrument, on the one hand, leave compliance or refusal optional, •or, on the other hand, amount to an imperative direction. In the former case it is a mere request; in the latter it is a demand, with which the drawee must in common honesty comply, and amounts to the order which is a necessary constituent of a bill of exchange. We may perhaps make this distinction more clear if we show it as it is laid down in the cases. Among the earliest ones on the point are EUFF v. WEBB » and LITTLE v. SLACKFOED." In Little v. Slackf ord, construing the words, 'Tlease to let the bearer have seven T For a distinction between checks and bills of exctiange, see MORRISON v. BAILEY, 5 Ohio St. 13; Johns. Gas. Bills & N. 40. Certificates of deposit are, in legal effect, promissory notes. TRIPP v. CTJRTBNIUS, 36 Mich. 494; Johns. Gas. Bills & N. 38. As holding a bank pass book to be nonnegotiable, see Mc- Caskill V. Connecticut Sav. Bank, 60 Conn. 300, 22 Atl. 568; Johns. Gas. Bills & N. 35. Bills of lading are quasi negotiable instruments, transferable -by indorsement and delivery. SHAW v. RAILROAD CO., 101 tJ. S. 557- Johns. Gas. Bills & N. 42. 8 Edw. Bills & N. § 187; Chit. Bills, p. 154; Luff v. Pope, 5 Hill, 413. » 1 Esp. 129 (before Lord Eenyon in 1794). 10 Moody & M. 171 (before Tenterden, C. J., in 1828). 28 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 pounds, and place it to my account, and you will oblige your bumble servant, R. Slackford," Lord Tenterden said: "The fair meaning is, 'You will oblige me by doing it.' " In Ruff v. Webb the words were: "Mr. B will much oblige Mr. A by paying C or order." Lord Kenyon said it was a bill of exchange, because it was an order to pay mon- ey.^ ^ This case is a strong illustration of construction of words of courtesy as importing an order, but there was nothing in the lan- guage used that could not be explained on the score of courtesy. In the former case, on the other hand, the words "Please to let the bearer have" amounted to a mere request for a favor. As the latter case indicates, the fact that the order is expressed in polite words does not impair its mandatory effect. They may seem a request, yet be in fact an order. Indeed, the presumption is against their being a request, and the courts generally seek to construe the instrument as an order. ^^ And, in order to displace the construction that the in- strument is a bill, it would seem to require that the language nec- essarily imported a favor, and was not meant as mere words of civility.^' Nor is mere authority to pay equivalent to an order. Thus, in HAMILTON V. SPOTTISWOODE,^* where the words were, "We hereby authorize you to pay on our account to the order of C," Baron Parke said: "Here is only an option to pay or not; therefore this document is not a bill of exchange, but only a warranty, in case the defendant paid." " And in RUSSELL v. POWELL,^' where J M assigned to the plaintiff a share in the estate of T H, deceased, in 11 See, also, ELLISON v. COLLINGRIDGE, 9 O. B. 570, where "credit In cash" was held equivalent to "pay." In KING v. BLLOR, 1 Leach, 323, it was held that the terms of the following order did not Import any compulsion on the part of the drawee to pay, but was simply a request: "Please to send £10 by the bearer, as I am so ill I cannot wait upon you." An account, with an order accompanying, from the creditor to .the debtor, that the latter should pay the account to O. & Sons, was held not to be a bill. NORRIS v. SOLOMON, 2 Sloody & R. 266. But see HOYT v. LYNCH, 2 Sandf. (N. Y.) 328. 12 Story, Bills & N. § 33; WHEATLBY v. STROBE, 12 Cal. 92; SPURGIN V. McPHEETERS, 42 Ind. 527. 15 HOYT V. LYNCH, 3 Sandf. 328. i4 4Exch. 200. 16 KING V. ELLOR, 1 Leach, 323; Willoughby's Case, 2 East, P. C. 582, 936. 16 14 Mees. & W. 418. § 16) PROMISE CONTAINED IN NOTE. 29 the following instrument: "To the executors of T H, deceased- Gents: We do hereby authorize and require you to pay to Mr. Geo. Powell, or his order, £350, being the amount directed by the order of the 29th of July last [an order of court] to be paid to our order. J M," — it was pointed out that the executors need or need not pay this sum, according to the condition of the estate in their hands, and therefore this was not a bill of exchange. PROMISE CONTAINED IN NOTE. 16. A promise meaus any form of ■words from which an. intent of the maker to pay can be construed. A mere admission that a debt is due, which can be treated on a trial only as so much proof tending to establish a debt, is a very different thing from the promise required for a promissory note. A promissory note is a new obligation, and not simply evidence of an old obligation. An acknowledgment of indebtedness is evidence of an old obligation, but creates no new obligation.^^ In such terms as "Due C, 1100, value received;" "I O U flOO;" " "I acknowledge the within note to be just and due," ^' — there is no liability that is new, as- sumed by the persons who signed these instruments. They are mere memoranda relating to a financial transaction, without any impli- cation in words of a promise to pay. The courts go to the extreme limit to support a note in finding a promise to pay. Thus, in the words, "I do acknowledge myself to be indebted to A in £50, to be paid on demand," ^° the words "to be 17 In the case of HYNE v. DEWDNEY, which was for money lent, it was held that time of payment should be mentioned in a note, and that an instru- ment lacking such mention of time was nothing more than an acknowledgment that the money had been paid. 21 Law J- Q- B. 278. To the same effect, see TAYLOR v. STEELE, infra. By a very recent decision in New York the court of appeals has repudiated this doctrine, and held that an acknowledgment of in- debtedness implies a promise to pay. HEGBMAN v. MOON, 131 N. Y. 462, 30 N. E. 487. 18 CURRIER V. LOCKWOOD, 40 Conn. 349; GAY v. ROOKE, 151 Mass. 115, 23 N. E. 835; FISHER v. LESLIE, 1 Esp. 426; Hyne v. Dewdney, 21 Law J. 278. 18 GRAY V. BOWDEN, 23 Pick. (Mass.) 282. 20 CASBORNE v. DUTTON. Selw. N. P. 329; KIMBALL V. HUNTINGTON, 10 Wend. (N. Y.) 675. 30 OF NEGOTIABLE BILLS AND NOTES. ('Oh. 2 paid" were deemed a promise to pay; and the words, "I TJ £20, to be paid on the 22d inst.," were held to import a promise for a similar reason."^ So the words "John Mason, 14th Feb., 1836, borrowed of Ann Mason, his sister, the sum of £14 in cash as per loan, in promise of payment of which I am truly thankful for, and shall never be for- gotten by me, John Mason, your affectionate brother," were held to constitute a promise,^" because they expressly stated an advance of a loan of money, which the court thought was impliedly undertaken to be paid. The expressions of gratitude were in this case treated as mere redundancy. In the expression: "Good to C, or order, for $30, borrowed money," ^' the words of negotiability necessarily im- ported a promise. So, also, the expression, "Due A, |94, on de- mand," because the words "on demand" can only be of meaning with the words "to be paid" inserted.^* In some jurisdictions there are, it is true, decisions holding that the word "due" imports such a promise; "^ and in other jurisdictions, decisions treating duebills as promissory notes. But this is against the weight of authority, and not to be supported on principle. The true question before the court in construction should be the intention of the signer, to be gathered from any form of words in the instrument itself, to as- sume and pay as a distinctly new obligation.^* 21 BROOKS V. ELKINS, 2 Mees. & W. 74. 22 ELLIS V. MASON, 7 Dowl. 598. 23 FRANKLIN v. MARCH, 6 N. H. 364. A promise "to be accountable" to M. "or order" held sufficient. MORRIS v. LEE, 1 Strange, 629. So of the words "Due L R, or bearer, one day from date, $200." RUSSELL v. WHIP- PLE, 2 Cow. (N. Y.) 536. An instrument containing an order to credit P, or order, in cash, was held a bill. ELLISON v. COLLINGRIDGB, 9 C. B. 570. See, also, Schmitz v. Mining Co., 8 S. D. 544, 67 N. W. 618; HXJSSEY v. WINS- LOW, 59 Me. 170. 24 SMITH y. ALLEN, 5 Day (Conn.) 337. In this case, which was an action of assumpsit on the following instrument: "Due John Allen 94 dollars, 91 cents, on demand,"— it was held that the words "on demand," following an aclinowl- edgment of debt, and signed by the debtor, import such a promise to pay as to constitute the writing a note. 2 JACQUIN T. WARREN, 40 111^459; Anderson v. Pearce, 36 Ark. 293; ST. LOUIS, I. M. & S. RY. CO. v. BANK, 47 Ark. 545, 1 S. W. 704; BRADY v. CHANDLER, 31 Mo. 28; LEE v. BALCOM, 9 Colo. 216, 11 Pac. 74. 2 6 In BLOCK V. BELL an instrument which ran, "On demand, I promise to pay A. B., or bearer, the sum of £15, for value received," was not signed at the § 17) CERTAINTY AS TO TERMS OP ORDER OR PROMISE. 31 A consideration of the decisions from which the foregoing in- stances are taken will clearly outline the theory that I O U's or ac- knowledgments of indebtedness cannot be made the foundations of commercial instruments. They can only be classified in law as ad- missions, and have weight as evidence.^' CEBTAINTST AS TO THE TERMS OF THE OEDEB, OE PROMISE. 17. A bill or note must be payable absolutely and at a time certain.^ EXCEPTIONS— (a) If the instrument be payable upon the happening of an event -which is certain to happen, though the time when it ■will happen be uncertain, the instrument is negotiable. foot, but was addressed in the margin to B., who wrote across it "Accepted,"" with his signature. It was held that the signature acted as an adoption of the promise, and that the instrument was a promissory note. 1 Moody & E. 149. See, also, PETO v. REYNOLDS, 9 Exch. 410. An order without drawee, how- ever, is not only incomplete as a bill, but for want of a promise is insuflBcient as a note. FORWARD v. THOMPSON, 12 XT. C. Q. B. 103. But see ALMY v. WINSLOW, 126 Mass. 342. In TAYLOR v. STEELE an action was brought on the following instrument: "Received from Mrs. Barbara Taylor the sum of £170, for value received, for which I promise to pay at the rate of £5 per cent. from the above date." The following opinion was delivered by Parke, B.: "This document is not a promissory note, because it contains no promise to- pay the principal, but only the interest. » * * i agree that an actual prom- ise is not necessary if there are words in the instrument from which a promise- to pay can be collected." 16 Mees. & W. (1847) 665. A certificate of deposit payable to order after a certain time, with interest, is held to be a negotiable- promissory note. MILLER v. AUSTEN, 13 How. 218; BANK OF ORLEANS v. MERRILL, 2 Hill (N. Y.) 295. In an action of assumpsit on the following in- strument: "Due A. & B. $17.14. Value received. X. Y.,"— the doctrine laid, down in Smith v. Allen, supra, was followed, and it was held that the words "value received" were not equivalent to "on demand," and that, to constitute- an instrument a promissory note, there must be an express, as distinguished, from an implied, promise. CURRIER v. LOCKWOOD, 40 Conn. 349. 27 FISHER V. LESLIE, 1 Esp. 426. 28 A promissory note payable "on or before" a day named is certain as to- time, and is negotiable. MATTISON v. MARKS, 31 Mich. 421; Johns. Gas.. Bills & N. 22. See, also, note 43, post. 32 OE' Nl-.GOTIABLE BILLS AND NOTES. (Ch. 2 (b) Bills and notes are subject to the implied condi- tions of presentment and notice of dishonor. 18. The instrument must not be payable out of any- particular fund. DISTINCTION — Indicating to a dra-wee a source or fund out of -which he may be reimbursed is not charging payment upon a particular fund. 19. The foUo-wing are absolute promises to pay money, and are negotiable instruments: Instruments payable (a) On demand, or (b) At sight, or on a fixed period after sight, or one in -which no time is expressed, -which is equiva- lent to an instrument payable on demand. SO, An instrument payable in installments, even though it provides that upon non-payment of an installment the ■whole becomes due, is a negotiable instrument. Certainty in General. Our purpose here is to explain why a negotiable instrument can- not be conditional in its terms, but must be absolute upon its face.^° 2 » It is a necessary quality of negotiable paper tliat it should be simple, cer- tain, unconditional, and not subject to any contingencies. CITIZEN'S' NAT. BANK V. PIOLLET, 126 Pa. St. 194, 17 Atl. 603; Johns. Cas. Bills & N. 18. To the same effect, see SMITH v. BOHEME, Gilb. Ch. 93. A note payable to A. or order "on demand, on the return of this certificate, and my guarantee of his note to his brother," was held not to be good, as its payment depended upon the happening of a contingency. SMILIE v. STEVENS, 39 Vt. 315. In WHITE V. GUSHING, 88 Me. 339, 34 Atl. 164, an order addressed to a savings bank, in form "Pay L or order $120, and charge to my account on book No. ," and containing on its face below the signature the words, "The bank book of the de- positor must accompany this order," was held not negotiable, because payable only on production of the book. See, also. Iron City Nat. Bank v. McCord, 139 Pa. St. 52, 21 Atl. 143. In ALEXANDER v. THOMAS an order to pay "90 days after sight, or when realized," etc. (meaning when in funds for the purpose), was held to be dependent on a contingency which might never happen, and therefore not a good bill. 16 Q. B. 333. A promise to pay "in 1% yrs. or soon- er, at the option of the mortgagor, « • * with interest to be paid during said term and for such further time as said principal sum or any part thereof §§ 17-20) CERTAINTY AS TO TERMS OF ORDER OR PROMISE. oo Generally speaking, certainty is one of the first essentials of a circulating medium. If conditions written upon the face of nego- tiable instruments were to be permitted, then every holder would necessarily be charged with notice of the conditions. And to be in a position to assert his equities, he would be bound to show that he had used all diligence to ascertain whether the condition had been fulfilled. And, the very essence of business paper being that it shall pass freely from hand to hand, to allow such an ingredient in the theory of negotiability would be an absurdity. In the leading case of GIBSON v. MINET,'" the theory is ex- plained thus : "The title of a bearer is self-evident. The title of an indorsee appears by the indorsement itself. Everything which is necessary to be known in order that it may be seen whether a writ- ing is a bill of exchange, and as such, by the custom of merchants, partakes of the nature of a specialty, and creates a debt or duty by its own proper force, appears at once by inspection of the writing. The wit of man cannot devise anything better calculated for circu- lation. The value of the writing, the assignable quality of it, the particular mode of assigning it, are created and determined in the original frame and constitution of the instrument itself; and the party to whom the bill of exchange is tendered has only to read it, need look no further, and has nothing to do with any private history that may belong to it. The policy which instituted this simple in- strument demands that the simplicity of it should be protected, and that it should never be entangled in the infinitely complicated trans- actions of particular individuals into whose hands it may come." IllvstraUon of Uncertainty as to Event. Some of the instances of the rule requiring certainty, commonly cited, and important to mention because of the distinction which is drawn with regard to them, are that class of orders and promises where it is uncertain from the inspection of the instrument that the shall remain unpaid," was held not to be a good note, by reason of its not being a promise to pay a fixed sum of money at a definite time. STULTS v. SILVA, 119 Mass. 137. See, also. Way v. Smith, 111 Mass. 523; Sloan v. McCarty, 134 Mass. 245; Baird v. Underwood, 74 111. 176; Meyers v. Phillips, 72 111. 460; Smentek V. Coonhauser, 17 111. App. 266; PLETJRY v. TXJFTS, 25 IlL App. 101; POST V. RAILWAY CO., 171 Pa. St. 615. 33 Atl. 362. 30 1 H. Bl. 618. NBG.BILLS.-3 84 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 day or event of payment' is ever to arrive.'* The case of BEAKDES- LEY V. BAIiDWIN *=' is an example. That was a promise to pay money so many days "after the defendant should marry," This is briefly reported as not being negotiable within the statute. Another instance is BRAHAM v. BTIBB,^' which was a promise to pay "four years after date, if I am then living." Abbott, C. J., said: "It is contingent whether the note will ever be payable, for, it the maker should die within the four years, no payment is to be made."^* These will perhaps suflQce to illustrate the point that such instru- ments contain a promise so indefinite that, for busiaess purposes, it hardly amounts to a promise at all.°° It can certainly have no defi- 81 See Neg. Inst. L. § 23. 82 2 Strange, 1151. 83 MS. Trln. Term, 1826, Middlesex (cited In Chltty, Bills, *135, note). 8* KICHAKDSON v. MARTYR, 25 Law T. 64; De Wald's Estate, 13 Phlla. (Pa.) 251. 86 In RICHARDSON v. MARTYR It was held that, where demand on a note must be made during the lifetime of the payee, the undertaking was conditional, and did not, therefore, constitute a promissory note. 25 Law T. 64. Where a note was given on a condition that, should a dispute arise between certain parties about the subject for which the note was given, said note should be void, it was held that the instrument was not negotiable, since the party taking was compelled to inquire as to an extrinsic fact, and therefore took only a contingent benefit. HARTLEY v. WILKINSON, 4 Maule & S. 25. Where the words were, "I undertake to pay to R J the sum of £6 for a suit of clothes ordered by D P," it was held that the promise was to pay for the goods only if supplied, and hence that the instrument was not a note. JARVIS v. WIL- KINS, 7 Mees. & W. 410. On the other hand, in an action on a note given "in consideration of foregoing and forbearing an action at law * * • for dam- ages ascertained * * *," it was held that, as it appeared on its face that the consideration was executed, the note was payable in all events, and the promise was sufficient. Shenton v. James, 5 Q. B. 199. A written promise to pay a certain amount of money as soon as K. shall come of age was held not to constitute a promissory note, and this, too, regardless of the fact that K. did in fact attain his majority. KELLEY v. HEMMINGWAY, 13 111. 604. In an action upon an order payable if terms mentioned in letters of the drawer should be complied with, it was held that there could be no recovery, although by the acceptance a compliance was admitted. The writing was not a bill when drawn, by reason of the contingency, and could not subsequently become so. KINGSTON v. LONG, 4 DOUG. 9; Bayley, Bills (6th Ed) 16. In AP- PLEBY V. BIDDOLPH— an action on a note in these words: "I promise to pay * ♦ * If my brother doth not pay it within such a time"— judgment §§ 17-20) CERTAINTY AS TO TEEMS OF ORDER OR PEOMISE. 35 nite value. Hence the reason of the rule that such instruments are non-negotiable, because uncertain. It would be unwise, from a busi- ness point of view, to allow such conditions to be incorporated in instruments which are to serve as a circulating medium. '° Certainty as to Ji/oent, Uncertainty as to Ti/me. The rule laid down by the courts that no order or promise from the terms of which it is manifestly uncertain that the money will ever be paid can be a negotiable instrument, is undoubtedly wise. As much cannot be said for the rule laid down in contradistinction to it, in another aspect of this same point. Where the time of pay- ment is certain to arrive, although the precise time be uncertain, the courts consider the element of uncertainty which destroys negotia- bility to be eliminated.'' This rule originated in two cases, fol- lowed in other jurisdictions, but of doubtful authority to-day in Eng- land, the jurisdiction of their origin. '' These cases are ANDREWS V. FRANKLIN '» and COLEHAN v. OOOKE." The instrument in ANDREWS V. FRANKLIN was a promise to pay within two months after a certain ship was paid off, and was held to be negotiable as a note because paying off the ship was a thing of a public nature, and certain to arrive. In COLEHAN v. OOOBZE the instrument was a promise to pay ten days after the death of the maker's father, — an event also certain to arrive. In this last case Lord Chief Justice Willes said : That a note, to be within the statute of Anne, need be was arrested after verdict on the ground that the drawer might be the debtor only upon a contingency. Cited in 8 Mod. 363. A note containing a memo- randum that "it Is the understanding It will be renewed at maturity," since the obligation depended on whether the maker chose to pay or give a new note, held not negotiable. Citizens' Nat. Banis v. PloUet, 126 Pa. St. 194, 17 Atl. 603. 8 6 Corbett v. State, 24 Ga. 287; HUSBAND v. EPLING, 81 III. 172; PEAR- SON y. GAEEETT, 4 Mod. 242; PALMER v. PRATT, 2 Blng. 185; COOLIDGE V. RUGGLES, 15 Mass. 387; DE FOREST v. PRAEY, 6 Cow. (N. Y.) 151; Grant v. Wood, 12 Gray (Mass.) 220; Sloan v. McCarty, 134 Mass. 245; BROOKS v. HAEGEEAVES, 21 Mich. 255. 37 See Neg. Inst. L. § 23. 88 See 2 Ames, Cas. Bills & N. 831, citing ALEXANDBE v. THOMAS, 16 Q. B. 333, and MAOAETHTJE v. FULliAETON, Mor. Diet. 1408. 88 1 Strange, 24. *o Willes, 393. "After my death date" held a time certain. SHAW v. CAMP, 160 111. 425, 43 N. B. 608; Crider v. Shelby (C. C.) 95 Fed. 212. 36 OP NEGOTIABLE BILLS AND NOTES. (,Ch. 2 ■fonly an express promise to pay to another or his order, or to bearer, ■^ut as to the time of payment, the act is silent"; that there was ■aio limited time beyond which if bills of exchange were made pay- able they were not good; and that "if a bill of exchange be made payable at never so distant a day, if it be a day that must come, it Is no objection to the bill." This is probably the generally accepted -^ioctrine at the present day. Says Judge Pierpoint in CAPEON v. all of which mean the same thing, it is the duty of the holder to make the presentation within a rea- sonable time. Similar methods of construction were employed where the instrument failed to express any time of payment at all. In such cases it was reasoned that the instrument would become due some time, and where the parties themselves failed to fix any time, the law fixed one for them, which was immediately. Thus instru- ments which failed to contain an expression of the time of payment were deemed equivalent to instruments payable on demand,^ ^ and the rules we have heretofore given applied to them.'^* PayTnent in Installments. It remains to notice instruments payable in installments. An in- strument may be payable in installments due at specified times; '^ or it may be payable in installments due at specified times, the whole sum to become due on the default in the payment of any installment. And either clause, the latter, however, with what seems a lack of appreciation of sound business methods, the courts declare to be proper for a negotiable instrument.'* From a business point of 7" CROSSMOEE T. PAGE, 73 Cal. 213, 14 Pac. 787; DIXON v. NUTTALL, 1 Cromp., M. & E. 307. 71 A note specifying no time of payment is in legal effect payable on demand. This is so even though it provides for interest. First Nat. Bank v. Price, 52 Iowa, 570, 3 N. W. 639; Johns. Gas. Bills & N. 19. "The conclusion of the law is that, where no time of payment is specified in a note, it is payable immediately." Per Curiam, in HEERICK v. BENNETT, 8 Johns. (N. Y.) 374. LIBBY V. MIKELBOEG, 28 Minn. 38, 8 N. W. 903. In PAGE v. COOK, 164 Mass. IIG, 41 N. E. 115, a note in form, "On demand, after date, I promise to pay * * * $500, payable when payor and payee mutually agree," was construed as meaning that it was payable when the payor ought reasonably to have agreed; that is, within a reasonable time. See Neg. Inst. L. § 26, subd. 2; McLeod v. Hunter, 61 N. Y. Supp. 73, 29 Misc. Eep. 558 (under section 26). 7 2 When an instrument is issued, accepted, or indorsed when overdue, it is, as against the person accepting, issuing, or indorsing, payable on demand. BASSENHOEST v. WILBY, 45 Ohio St. 333, 13 N. E. 75; Smith v. Caro, 9 Or. 278. See Neg. Inst. L. § 26. 73 EIKER V. MANUFACTUEING CO., 14 E. I. 402. 74 CARLON V. KBNEALY, 12 Mees. & W. 139. In this case the note was to become immediately payable on default in' payment of the first Installment. There was a special demurrer on the ground that, since the second Installment was payable by way of condition and penalty, the note was not negotiable. 42 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 view, a man may as well give one piece of paper payable in several installments as divide up the principal indebtedness and give sepa- rate instruments for it. But there is a great difference between such an instrument and one which may become wholly due, at the payee's option, by reason of a default at any one of a series of times. In- struments of the last class are open to the criticism that they are uncertain in amount, as well as in time of payment of installments subsequent to the first; but in spite of these considerations their negotiability is firmly established.'" PAYMENT or MONET ONLY. 21. The iustrumeut must be for payment in money only. 22. A negotiable instrument must be for the payment of money without connected promise, -wrhether disjunctive or conjunctive, for the performance of some other act. 23. (a) A negotiable instrument may contain an addi- tional agreement, ■which is not of the essence of the order or promise, but is merely incidental or collateral to it. 24. (b) A negotiable instrument may give the holder an option between payment of money and some other thing. 25. The amount of money to be paid must be certain. EXCEPTIONS— (a) That the instrument is payable w^ith interest does not destroy its negotiability, (b) That the instrument is payable w^ith current ex- change does not destroy its negotiability. The following was a portion of the opinion of the court: "It is not a con- tingency; it depends on the act of the maker himself; and, on his default, it becomes a promissory note for the whole amount." Roberts v. Snow, 27 Neb. 425, 43 N. W. 241. MILLER v. BIDDLB, 13 Law T. (N. S.) 334. This was an action upon a promissory note, not made payable to order or bearer, and payable by installments, with a condition that if any installment were not duly paid the whole sum should become due immediately. In accordance with the case of CAELON v. KBNEALY, supra, the instrument was held ne- gotiable, though Pollock, 0. B., dissented. Goshen & M. Turnpike Road v. Hurtln, 9 Johns. 217; Washington Co. Mut. Ins. Co. v. Miller, 26 Vt. 77; WIL- SON v. CAMPBELL, 110 Mich. 580, 68 N. W. 278; CHICAGO RY. EQUIP- MENT CO. V. BANK, 136 U. S. 268, 10 Sup. Ct 999. 7B See Neg. Inst L. § 21. §§ 21-25) PAYMENT OF MONEY ONLY. 43 Definition of ^'' Money.'''* Bills and notes, being representatives of money, must be payable in money." "Money," within this rule, means whatever may be used as legal tender for payment of debts at the place where the bill or note is payable. In the United States what is legal tender is deter- mined by the "Legal Tender Acts." '^ Where there are several kinds of legal tender, as gold, silver, and notes, a bill or note may be made payable in either.''* But all other kinds of currency, whether coin or paper, are in law but "collateral commodities, like ingots or dia- monds, which, though they might be received, and be in fact equiva- lent to money, are yet but goods and chattels," '' or mere choses in action. For this reason an instrument which possesses all the other requisites of a bill or note is not such if the medium of pay- ment be limited to what is not "money." °° It is true that there is TO See Neg. Inst. L. § 20, subd. 2. Cf. § 220. " Rev. St. TJ. S. §§ 3584r-3590. T8 GHRTSLER v. RENOIS, 43 N. Y. 209. 78 THOMPSON v. SLOAN, 23 Wend. (N. Y.) 71, per Cowen, J. 80 Common terms wliieh have been held excluded within the above rule are "funds current," "current money," "currency," "current funds," "current bank paper," "current bank bills," "common currency," "notes receivable in bank," "currency of Missouri," "current bank notes," "bank notes," "New York funds," "Arkansas money," "foreign bills," "Pennsylvania bank bills," "Missis- sippi bank notes," "specie." IRVINE v. LOWRY, 14 Pet. 293; Hasbrook v. Palmer, 2 McLean, 10 Fed. Gas. No. 6,188; Fry v. Reusseau, 3 McLean, 106, Fed. Gas. No. 5,141; Hawkins v. Watkins, 5 Ark. 481; JONES v. FALES, 4 Mass. 245; Young v. Adams, 6 Mass. 182; Leiber v. Goodrich, 5 Cow. 186; State V. Corpening, 10 Ired. 58; Besancon v. Shirley, 9 Smedes & M. 457; Collins T. Lincoln, 11 Vt. 268; Campbell v. Weister, 1 Lltt. (Ky.) 30; Breck- inridge V. Ralls, 4 T. B. Mon. 533; Simpson v. Moulden, 8 Gold. 429; FIRST NAT. BANK v. SLETTE, 67 Minn. 425, 69 N. W. 1148 ("payable by New York exchange"). In REX v. WILCOX, Bailey, Bills (6th Ed.) 11, an instrument payable "In cash or Bank of England notes" was held not to be a note. Prof. Ames points out. a fact which has sometimes been overlooked in reference to this case,— that it was decided prior to the statutes making Bank of England notes legal tender. 1 Ames, Gas. Bills & N. p. 39, note 2. In GRAY v. WOR- DEN, 29 TJ. C. Q. B. 539, it was held that an Instrument payable in "Canada bills" was not a note, notwithstanding a statute making such blUs legal tender. The court said: "It may be that a person can make a promissory note payable In a particular coin, as in gold or silver, because they are respectively money and specie; but I think he cannot make it payable in Canada bills, because 44 OP NEGOTIABLE BILLS AND NOTES. (Ch. 2 great conflict among the decisions upon this point, and some courts have held,*^ while other courts have denied/^ that instruments were negotiable which were payable in "current funds" or "currency," or where other like expressions were used. Some courts have even held negotiable instruments in which the language used could not by any possible construction be deemed to designate legal tender.** It is to be borne in mind, however, that the construction of the in- strument is for the court, and that courts have frequently differed in their construction, often in the light of local usage of particular words; thus holding variously that identical expressions did or did not amount to a designation of legal tender, while agreeing that the instrument, to be negotiable, must be payable in that medium.** Thus it has been held by the supreme court of the United States that a check payable "in current funds" is negotiable. Field, J., they are not money or specie. They have no intrinsic value, as coin has; they represent only, and are the signs of, value. 'Money itself is a commodity; it is not a sign; it is the thing signified.' McCuUoch, Polit. Been. 135." But this opinion, as Prof. Ames points out (2 Cas. Bills & N. 829), "however sound in political economy, is unsound in law." 81 Telford v. Fatten, 144 111. 611, 33 N. E. 1119; Citizens' Nat. Banli v. Brown, 45 Ohio St. 39, 11 N. B. 799; BUTLEK v. PAINE, 8 Minn. 324 (Gil. 284); PHELPS V. TOWN, 14 Mich. 374; LAIRD v. STATE, 61 Md. 309. 82 Piatt V. Bank, 17 Wis. 222; WEIGHT v. HAKT, 44 Pa. St. 454; HUSE v. HAMBLIN, 29 Iowa, 501; Mobile Banli v. Brown, 42 Ala. 108. 83 "York state bills or specie." Keith v. Jones, 9 Johns. (N. Y.) 120. A note payable "in the bank notes current in the city of New York," — on the ground that it is confined to bank paper of known cash value. Judah v. Harris, 19 Johns. (N. Y.) 144. "Current Ohio bank notes." SWETLAND v. CREIGH, 15 Ohio, 118. 84 A note payable in Tennessee money. It was held that such a note was, to all legal intents, payable in gold or silver. "The case is different where it is payable in Tennessee bank notes." SEARCY v. VANCE, Mart. & Y. (Tenn.) 225. With reference to the apparent irreconcilability of some of the cases, Mr. Wood makes the following explanation: "It will be seen, upon exam- ination of the cases, that many of them are not so irreconcilable as at first sight they may appear. Many of them construe the words 'current money. New York funds,' etc., used in bills and notesi, to mean lawful gold and silver coin of the United States. A contract for the payment of a certain sum in bank notes or other paper currency may or may not be equivalent to that sum in specie. The extent of the obligation depends on the meaning which usage affixes to the terms at the time the contract was made." Byfes, Bills (Wood's Notes) p. 95. §§ 21-25) PAYMKJST OF MONEY ONLY. 45 said: "Within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or maimers of promissory notes, to indicate whether the same are to be paid in gold or silver or in such notes; and the term 'current funds' has been used to designate any of these, all being current, and declared by positive enactment to be legal tender. It was in- tended to cover whatever was receivable and current by law as money, whether in the form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was im- paired by the insertion of these words." *° Payment in Property Other than Money. The real reason for the requirement that negotiable instruments must be payable in money obviously is that money is the one stand- ard of value in actual business. All other commodities may rise and fall in value, but in theory, at least, money always measures this rise and fall, and remains the same. The chattel which is used as a means of payment may fluctuate in value. Thus, "a note pay- able in neat cattle," *° a promise to pay "in a good horse, to be worth $80.00, and goods out of store amounting to $20.00," " — are non- negotiable. These instruments are special contracts for delivery of chattels, and not negotiable instruments.*' The damages recover- able upon them are held to be in some states the actual value of the articles on the day stipulated for payment; '" but in New York,^° 85 BULL V. BANK, 123 TJ. S.,105, 8 Sup. Ct. 62. Neg. Inst. L. § 25, pravides that the validity and negotiable character of the instrument are not affected by the fact that it designates a particular kind of current money In which payment Is to be made. 86 JEROME V. WHITNEY. 7 Johns. (N. Y.) 322. 8T THOMAS V. EOOSA, 7 Johns. (N. Y.) 461. For other authorities, see Byles, Bills (Wood's Notes) p. 95. 88 Matthews v. Houghton, 11 Me. 377; Rhodes v. Lindley, Ohio Cond. R. 465; Lawrence v. Dougherty, 5 Yerg. (Tenn.) 435; AUERBACH v. PRITCH- ETT, 58 Ala. 451; Smith v. Boheme, 1 Chit. Jr. Bills, 234; CLARK v. KING, 2 Mass. 524; Gushee v. Eddy, 11 Gray (Mass.) 502. In QUINBY v. MERRITT it was held that a written agreement to pay the equivalent of a certain sum in labor did not constitute a promissory note. 11 Humph. (Tenn.) 439. 89 McDonald v. Hodge, 5 Hayw. (Tenn.) 85; Edgar v. Boies, 11 Serg. & R. 445; McGehee v. Posey, 42 Ala. 330. 00 pinney v. Gleason, 5 Wend. 393. Vermont, Connecticut, and Ohio have 46 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 although it is admitted that these contracts are merely for the deliv- ery of specific articles, yet when the words were, "To pay J. P. $79.50, Aug. 1st, 1822, in salt, at 14s. per bbl.," it was held that it was in- tended at the time of making the contract to receive the goods instead of money, and that the goods had, therefore, a fixed value, which must be treated as the measure of damages. In other re- spects, the debtor must seek his creditor to perform the contract as is the usual rule. If the chattels are ponderous, the maker of the note must seek the payee, and see where he will receive them. Payment in Foreign Money. There is one apparent deviation from the rule, which it is impor- tant to notice. Where a bill or note is expressed in money of a foreign denomination, it is still negotiable.'^ The courts, under the statutes of the United States,'^ will take judicial notice of the fact that the value of foreign coin, as expressed in the money of account in the United States, shall be that of the pure meta,l of such coin of standard value; and that the value of the standard coin of the various nations of the world in circulation is estimated annually by the directors of the mint, and proclaimed on the first day of January by the secretary of the treasury. These foreign denomina- a similar rule. Culver v. Robinson, 3 Day (Conn.) 68; Perry v. Smith, 22' Vt. 301. 81 "A note payable in pounds, shillings, and pence, made In any coimtry, is but another mode of expressing the amount in dollars and cents, and It is so understood judiciaaiy." THOMPSON v. SLOAN, 23 Wend. (N. X.) 71, per Cowen, J. An instrument whereby the maker promised to pay "one thousand Mexican silver dollars" was held to be a note. Hogue v. Williamson, 85 Tex. 553, 22 S. W. 580. Daniel, Neg. Inst. § 58, criticising the language of Cowen, J., supra, says: "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 the , denomination of foreign money is not set out;" citing BLACK v. WARD, 27 Mich. 193, where it was held that a note made in Michigan and payable in Canada in "Canada currency" was payable in money, and negotiable. Compare St. Stephen Branch Ry. Co. v. Black, 2 Hann. 130, where an instrument prom- ising to pay "three hundred and seventy-one dollars, payable in U. S. cur- rency," was held to be a note. It was said that "U. S. currency" meant money of the United States, and the instrument was construed as being "for payment: of three hundred and seventy-one dollars of the United States." »2 Rev. St. § 3564. §§ 21-25) PAYMENT OF MONEY ONLY. 47 tions therefore can always be paid in our own coin of equivalent value, to which it is always reduced on a recovery.'' In an action upon such an instrument the course is to prove the value of the sum expressed in our own tenderable coin, because the instrument can be construed by the courts to be payable in no other.'* In the cal- culation of this sum there is, to be added the item called "exchange." This means the difference in value in the same amount of money in different countries. Thus, in the illustration in the footnote to section 10, if there were more debts due from England to Jamaica than from Jamaica to England, the demand in England for bills on Jamaica would be greater than the demand in Jamaica for bills on England. Hence, in England, it would be more expensive to pro- cure a bill on Jamaica than it would be, in Jamaica, to procure a bill on England. Thus B, in England, would be obliged to pay A something for the debt G, in Jariiaica, owes to A, in England, be- cause the other English debtors would willingly pay something to avoid the risk and expense of transmitting money to discharge their debts. And thus B must pay A something in addition for the draft which A sells him, and which A could otherwise sell in the open market. This something is the amount which it will cost to replace the £1,000 in England in Jamaica, or which the right to a sum of money due in Jamaica will produce in money in England. The rate of exchange depends upon the balance of trade with England; and if it is excessive, and is sufilcient to pay the expense of exporting the precious metals, gold will be sent in preference to bills of exchange purchased at the current rate.'^ This item, as has been said, is to be added, and the courts construe the instrument to mean, where it is drawn in one country and payable in another, and the amount is expressed in the money of the former, that the amount must be calculated according to the rate of exchange on the day the instrument is payable. "^ »3 2 Chit. Bills (Am. Ed. 1839) 615, 616; DEBEREY v. DARNELL, 5 Terg. (Tenn.) 451. 9* THOMPSON V. SLOAN, 23 Wend. (N. Y.) 71; Bayley, Bills (Am. Ed. 1836) 23. 5 Schermerhorn v. Talman, 14 N. Y. 93, page 136. »o Grant v. Healey, 3 Sumn. 523, Fed. Cas. No. 5,696; Smith v. Shaw, 2 Wash. C. C. 167, Fed. Cas. No. 13,107; Lee v. Wilcocks, 5 Serg. & R. 48; 48 OF NEGOTIABLE BILLS AND NOTES, (Ch. 2 Performance of Other Acts in Addjition to Payment of Money. The reasons already given have guided the courts in laying down the rule that the order or promise "must not be for the payment of money and the performance of some other act.°^ The authority gen- erally quoted on this point is Martin v. Ghauntry.'* This instru- ment was a note "to deliver up horses and a wharf, and pay money." It was held not to be a note within the statute of Anne; for, said Baron Parke in a later case,°° to constitute a promissory note the promise must be to pay a sum certain and nothing else.^"" The reason for this is that to ingraft a special agreement upon a general promise to pay money would be at once to defeat its practical use- fulness as a quasi money. Professor Ames, with his usual force, points out the objections: "One could be indorsed, the other would have to be assigned. In some jurisdictions the action could be brought by the indorsee in his own name, but as assignee he could only sue in the name of his assignor. In the case of the negotiable instrument being in the hands of a bona fide holder, no defense of fraud or latent equity would avail; in case of the holder as assignee, all would avail." Terms Collateral or Incidental to Order or Promise. But while an instrument which incorporates with the order or promise to pay an agreement to do some other act is not a bill or note, it is possible, without destroying the negotiability of a bill or note, to annex to it an agreement which relates to it, but which is merely incidental. The point to determine is whether such agree- ment is a part of or necessary to the fulfillment' of the promise or order. If it is not, it does not destroy the instrument's negotia- bility.^°i The case commonly referred to as the leading authority Is WISE V. CHARLTON."" This was a promise to pay to J. or Bank of Missouri v. Wright, 10 Mo. 719; Scott v. Bevan, 2 Barn. & Add. 78; Cash V. Kennion, 11 Ves. 314. 8' See Neg. Inst. L. § 24. 8 2 Strange, 1271. 89 FOLLETT V. MOORE, 4 Exch. 416. 10 COOK V. SATTBRLBE, 6 Cow. (N. T.) 108; Fletcher v. Thompson, 55 N. H. 308; First Nat. Bank v. Carson, 60 Mich. 433, 27 N. W. 589. 101 See Neg. Inst. L. § 24, subd. 1. 10 2 4 Adol. & B. 786. The fact that a note contains a contract as to col- lateral security, and provides the means for converting the security, will not §§ 21-25) PAYMENT OF MONEY ONLY. 49 order £125, and contained the added words, "And I have deposited in his hands title deeds * * * as a collateral security." It was contended that the right to transfer the deeds was not negotiable, while the right to transfer the note was, but the court held that the memorandum of security was not imported into the main agree- ment, which was to pay money. Examples of this rule are memo- randa upon the face of an instrument showing for what consider- ation it was given, ^"^ as that it "is secured according to the condition of a certain mortgage," ^°* or that "it was given in consideration of a patent right." "° In New York the leading case is LEONAED v. MASON."" There the draft was: "Levi Mason, Esq.: Please pay the above note, and hold it against me in our settlement." The court said the reference in the note was merely to ascertain the amount, and "retaining the note as a voucher is no more the performance of another act besides the payment of the money than the retaining the order itself for the same purpose." HODGES v. SHULEE"' is also noteworthy. There the promise was to pay to S. or order $1,- 000, with interest, payable as per attached interest warrants, "or, up- on the surrender of this note, together with the interest warrants, not due to the treasurer [of the maker] * * *^ he [the treasurer] shall issue to the holder thereof ten shares in the capital stock," etc. There were thus two courses open to the holder of the instrument, but not to the maker. His promise for the payment of a sum of money was un- conditional. He might not pay in money or in stock, but the holder might, at his option, surrender the note and take the stock, thus deprive It of its negotiable property. The persons indorsing such Inetniments undoubtedly intend to stand in the position, and to incur the liabilities^ of in- dorsers of commercial paper. ARNOLD v. RAILROAD CX)., 5 Duer (N. Y.) 207. See, also, Towne v. Rice, 122 Mass. 67; VALLEY NAT. BANK v. CEOW- ELL, 148 Pa. St. 284, 23 Atl. 1068. 103 See Neg. Inst. L. § 22, subd. 2. Section 22, subd. 2, and section 23, subd. 2, are not applicable to a conditional sale note, whereby ownership of the thing sold remains in the seller, and the buyer is given the right to acquire it by per- forming conditions; and such instrument is not a negotiable note. Third Nat. Bank v. Spring, 59 N. Y. Supp. 794, 28 Misc. Eep. 9. 104 Hereth v. Meyer, 33 Ind. 511; Mott v. Havana Nat. Banii, 22 Hun, 354. 105 Tassey v. Church, 4 Watts & S. 141; SIEGEL v. BANK, 131 111. 569, 23 N. B. 417. 108 1 Wend. 522. 107 22 N. Y. 114. NEG.BILLS.-4 50 OP NEGOTIABLE BILLS AND NOTES. (Ch. 2 in no wise compromising the right of any holder to collect the full amount of money called for by the instrument. The stipulation con- cerning the stock was an incident to the note, not of the essence of the promise to pay money.^"' Payment i/n Altematvoe. This test determines also the negotiability of that large class of instruments payable in the altemativp which are deemed by the courts absolute promises for the payment of money.^"* Such are options between payment of money and the delivery of some other thing.^^° The courts declare that "the instrument is no less an absolute promise for the payment of money because it vests the holder with the option to take payment in something else than money." The reason is that the maker or party on whose credit the instrument circulates is absolutely bound, and bound, moreover, to pay money alone. As long as this is the obligation of the promisor, it would be inexpedient to deny the instrument the immunities of negotiability because of stipulations which are beneficial, and per- haps may add to its value. These stipulations vest in the promisee or person who discounts the bill or note the option whether he will enforce them or not. The maker, in every event, is bound absolutely to pay money. Power to Confess Judgment — Wawer of Exemptions — Payment of Attorney'' s Fees. In conformity with the rule that a mere incidental agreement, which is collateral to the order or promise to pay, does not render it non-negotiable, it is generally, though by no means universally, 108 Oatman v. Taylor, 29 N. Y. 649; Willoughby v. Comstock, 3 Hill, 389; Falrchild v. Railroad Co., 15 N. Y. 337. Clause authorizing payee bank to appropriate on note money which maker might have in bank on deposit or otherwise, held not to destroy negotiability. Louisville Banking Co. v. Gray (Ala.) 26 South. 205. 109 Kirk V. Insurance Co., 39 Wis. 138; Heard v. Bank, 8 Neb. 16. See Neg. Inst. L. § 24, subd. 4. 110 OWEN V. BAENUM, 2 Gilman (lU.) 461; PRESTON v. WHITNEY, 23 Mich. 260; Dennett v. Goodwin, 32 Me. 44. In HOSSTATTER v. WILSON 11 was held that a note promising to pay at a certain time in money (or in goods on demand) was a good promissory note. The maker has no election to do otherwise than to pay money, though the holder may elect to take goods. 36 Barb. (N. Y.) 307. §§' 21-25) PAYMENT OF MONEY ONLY. Si- held that an instrument is none the less negotiable because it con- tains proTisions, to take effect if it is not paid at maturity, (1) au- thorizing the holder to confess judgment for the maker; ^^^ or (2> waiving defenses, or the benefit of stay or exemption laws; ^^' or (3) promising to pay costs of collection and attorney's fees."' It was said by Gibson, C. J., in a case which held that a power to con- fess judgment, and waiver of stay of execution and appraisement, rendered a note non-negotiable, that "a negotiable bill or note is a courier without luggage," and that "the parties could not have in- tended to impress a commercial character on the note, dragging after it, as it would, a train of special provisions, which would mate- rially impede its circulation." ^** But in answer to this objectioi* it has been well said that such provisions do not impede, but aid,. the circulation. While in answer to another objection, which has- been urged, that a provision for payment of costs and attorney's fees- renders uncertain the amount to be paid, it is a sufflcient answer that, the amount payable at maturity being certain, a promise tc- pay an additional, even if uncertain, amount in case of non-payment at maturity, after which time the instrument necessarily ceases to- be negotiable, does not impair its negotiability.^^® 111 OSBORN V. HAWLET, 19 Ohio, 130. OVERTON v. TTLEK, 3 Pa. St. 346, contra. See Neg. Inst. L. § 24, subd. 2. 112 ZIMMERMAN v. ANDERSON, 6T Pa. St. 421 (distinguishing OVERTON v. TYLER, supra); FIRST NAT BANK v. SLAUGHTER, 98 Ala. 602, 14 South. 545. See Neg. Inst. L. § 24, subd. 3. lis SPERRY v. HORR, 32 Iowa, 184; FIRST NAT. BANK v. SLAUGHTER, supra; STAPLETON v. BANKING CO., 95 Ga. 802, 23 S. B. 81; DORSE Y v. WOLFF, 142 111. 589, 32 N. E. 495; BROOKS v. HARGREAVES, 21 Mich. 254; Fralick v. Norton, 2 Mich. 130; First Nat. Bank v. Carson, 60 Mich. 432, 27 N. W. 589; Goodwin v. Goodwin, 65 111. 497; GILLILAN v. MYERS, 31 111. 525; Kingsbury v. Wall, 68 111. 311; Miller v. Stone Co., 1 111. App. 273; Hub- bard V. Moseley, 11 Gray (Mass.) 170; COSTELO v. CROWELL, 127 Mass. 293; JONES v. RADATZ, 27 Minn. 240, 6 N. W. 800; Johnston Harvester Co. V. Clark, 30 Minn. 308, 15 N. W. 252. FIRST NAT. BANK v. LARSEN, 60 Wis. 206, 19 N. W. 67, contra. See Neg. Inst. L. § 21, subd. 5. 114 OVERTON V. TYLER, supra. iiB Mr. Daniel points out (Neg. Inst. [4th Ed.] § 62) that the cases concerning the validity of stipulations for payment of attorney's fees are of four classes: (1) Those which sustain their validity, as weU as the negotiability of the in- strument (SPERRY V, HORR, supra); (2) those which sustain the validity of 52 OF NEGOTIABLE BILLS AND NOTES. (Cll. 2 Certainty as to Amount of Money. The last of the series of principles referring to the payment of money is that the order or promise must be for the payment of a definite sum of money.^^' By this is meant that it must specify exactly the sum of money to which it relates. It would be useless in the operations of discount if the purchaser were obliged to have reference to extrinsic facts or to other documents, to ascertain its value. And accordingly, in the leading case upon the point,^^' where the instrument was in form to pay £65, "and also all other sums which may be due," Lord Ellenborough declared that since the total sum was not specified, and could not be ascertained otherwise than by reference to books to ascertain the amount due, and the whole constituted one entire promise, and could not be divided into parts, tie instrument was too indefinite to be a promissory note. And the courts, in cases of orders or promises to pay "whatever sums you may collect," *^' or "the demands of a sick club," ^^* or like indefi- nite amounts, have wisely denied to them the privilege of negoti- ability. This rule does not, however, exclude from negotiability paper with such terms as "with interest," ^^^ or "with current ex- the stipulation, but not the negotiability of the instrument (Johnston Harvester Co. V. Clark, supra); (3) those which deny the validity of the stipulation, but sustain the negotiability of the Instrument (GILMORE v. HIRST, 56 Kan. 626, 44 Pac. 603, stipulation for attorney's fee illegal by statute); (4) those which hold the stipulation void, and deny the negotiability of the Instrument (BUL- LOCK V. TAYLOR, 39 Mich. 137). In some states stipulations for payment of attorney's fees are declared illegal by statute. 118 Oushman v. Haynes, 20 Pick. (Mass.) 132; PHILADELPHIA BANK V. NEWKIRK, 2 Miles, 442; DODGE v. EMERSON, 34 Me. 96; Jones v. Simp- son, 2 Barn. & C. 318; CLARKE v. PERCIVAL, 3 Barn. & Adol. 660; Aurey v., Pearnsides, 4 Mees. & W. 168. An obligation to pay "either £225 sterling or $1,000 lawful money of the United States of America, to wit, £225 sterling if the principal and interest are payable in London, and $1,000 lawful money of the United States of America if the principal and interest are payable in New York," is not negotiable. PARSONS v. JACKSON, 99 U. S. 434. See Neg. Inst. L. § 20, subd. 2. 117 SMITH V. NIGHTINGALE, 2 Starkie, 375. lis Legro V. Staples, 16 Me. 252. 119 Bolton V. Dugdale, 4 Barn. & Adol. 619. 120 A provision for a higher rate of interest in case of nonpayment at ma- turity does not Impair the negotiability. SMITH v. CRANE, 33 Minn. 144, 22 §§ 21-25) PAYMENT OF MONEY ONLY. 5^ change."^" The canon of construction is, "Id certum est quod certum reddi potest." And in such instruments the mere inspection of the paper itself enables the holder, by an almost mechanical com- putation, to ascertain just what sum is due upon it at any given time. And therefore such instruments may be deemed to specify a given sum of money as definitely as though they had stated the interest or the exchange in figures themselves.^" Of course it may be urged, and in fact, by text writers,"^ has been urged, that an instrument payable with current exchange is invalid because the fluctuations in the rate of exchange make it impossible to ascertain the amount payable when the bill is issued, and because proving the meaning of "with current exchange" necessitates evidence outside of the in- strument. But these views thus taken are rather of the letter of the law than of its spirit. The law merchant is the result of the custom of merchants, and the statute of Anne is the result of the law merchant. It is the custom, convenience, and sound business policy of merchants to induct into negotiable instruments the theory of exchange, and this reason, therefore, if no other, makes exchange a necessary modification of the general rule we have laid down. N. W. 633; PARKER v. PLYMELL, 23 Kan. 402. Hegeler v. Comstock, 1 S. D. 138, 45 N. W. 331, contra. See Neg. Inst. L. § 21, subd. 1. 121 The fact that an instrument for the payment of a specific sum of money- is made payable with "current exchange" on some other place than the place of payment does not prevent its being a promissory note. HASTINGS v. THOMPSON, 54 Minn. 184, 55 N. W. 968; Johns. Cas. Bills & N. 33. See, also, SMITH V. KENDALL, 9 Mich. 241; JOHNSON v. PRISBIE, 15 Mich. 286. There have, however, been contrary holdings as to this point, as in th& case of PHILADELPHIA BANK v. NEWKIRK, 2 Miles, 442; Windsor Sav. Bank v. McMahon (G. G.) 38 Fed. 283; Second Nat. Bank v. Basiner, 12 0. C. A. 517, 65 Fed. 58. In FIRST NAT. BANK v. SLETTB, 67 Minn. 425, 69 N. W. 1148, it was held that an Instrument, not payable at any particular place, promising to pay $1,673, "payable by New York or Chicago exchange," could not be construed as a promise to pay In money $1,673, with exchange, . and hence, not being payable in money, was not negotiable. Distinguishing HAST- INGS V. THOMPSON, supra. See Neg. Inst. L. § 21, subd. 4. 122 SMITH V. KENDALL, 9 Mich. 241; Grutacap v. WouUnise, 2 McLean, 581, Fed. Cas. No. 5,854; LEGGETT v. JONES, 10 Wis. 34. 128 Edw. Neg. Inst. § 154; Benj. Chalmers, p. 18, and decisions; LOWE v. BLISS, 24 111. 168; PHILADELPHIA BANK v. NEWKIRK, 2 Miles. 442^ READ V. McNULTY, 12 Rich. Law (S. C.) 445. 54 OF NEGOTIABLE BILLS AND NOTES. (Ch, 2 SPECIFICATION- OT" PARTIES. 26. The instrument must be specific as to all its parties. 27. By signature is meant any written emblem made by a person \intn. th.e intent of entering into a contract ob- ligation. 28. The note or bill must contain the signature of the maker or makers, dravrer or drawers. 29 The bill must be addressed to some person. EXCEPTIONS— (a) If the drawee can be otherwise sufficiently identified from the bill it is sufficient. (b) An unaddressed bill accepted or a bill accepted, / 'where the draw^er and acceptor are one and the same person, is to be treated as a promissory note, and is negotiable. 30. The bill or note must point out some person to w^hom the money is to be paid. The follo\mig are the common rules concerapng the nomination of payees: (a) The payee of an instrument, except one payable to bearer, must be a person in being, natural or legal, and ascertainable, at the ti,me^ of issue. (b) Where the payee and maker or drawer are the same person, the instrument is not issued until after its indorsement and delivery. (c) The payee may be a fictitious or noneixisting per- son, but the instrument is then construed as pay- able to bearer, and title thereto is made by es- toppeL Definition of Parties. In the acceptation of the term as hereinafter applied to "parties," the meaning of the word "parties" is somewhat more narrow than its strict legal one. In its strict legal definition a party to a con- J:ract is one to whom its operation as a legal contract is confined. §§ 26-30) SPECIFICATION OF PARTIES. 55 And while the holder of a bill or note indorsed in blank, or made payable to bearer, or claiming it under equitable assignment, is in the widest sense of the word no less a party to it than any of its actual indorsers, still the courts usually designate as "parties" only those who appear by name on the face or back of the instrument. Sig'/iature of Parties. A person is made a party by his signifying by his signature or some other written emblem upon the instrument that he intends to be bound by the instrument. "^^^ A signature in pencil,^"'* a signa- ture made by another person but attested by a rnark,^^' an indorse- ment upon the back of the note in form "1, 2, 8," made with the in- tention of indorsing,^^' are such evidences of intention. The ques- tion is whether the signer intended to bind himself or not.^^' As matter of theory and of law, and for the reason that the note being an evidence of obligation should point out on its face the party who primarily assumes that obligation, it is necessary that there should be a firftwer or maker somewhere specified in the instrument. But as long as the signature or emblem of the drawer or maker appears anywhere upon the instrument it is deemed prima facie evidence of his intention to be bound by its obligation.^^* It is immaterial 12* See Neg. Inst. L. § 20, subd. 1. 126 GEARY V. PHYSIC, 5 Barn. & C. 234; REED v. ROARK, 14 Tex. 329; BAKER V. DENING, 8 AdoL & B. 94. 126 GEORGE V. SURREY, Moody & M. 516; SHANK v. BUTSCH, 28 Ind. 19. 127 BROWN v. BANK, 6 Hill, 443. 128 Selby V. Selby, 3 Mer. 2; Lucas v. James, 7 Hare, 419; Boardman v. Spooner, 13 Allen (Mass.) 353; BRAYLEY v. KELLY, 25 Minn. 160. i2» Palmer v. Stephens, 1 Denio, 471; MERCHANTS' BANK v. SPICEB, 6 Wend. (N. Y.) 443. The payment by the drawee of a bill of exchange is an admission of the drawer's signature, which he may not afterwards dispute, as between himself and the holder; and he cannot compel the holder to whom he has paid the biU to return the sum paid, where the drawer's signature is dis- covered to be a forgery. BANK OP COMMERCE v. UNION BANK, 3 N. Y 280; PRICE v. NEAL, 3 Burrows, 1354. Such payment, however, is not an admission of the genuineness of the body of the bill. BANK OF COMMERCE V. UNION BANK, supra. As to the eflEect of a signature made in the presence of the owner, and by his authority, see Sager v. Tupper, 42 Mich. 605, 4 N. W. 555; Coy v. Stiner, 53 Mich. 42, 18 N. W. 552. As to the effect of acknowl- edging a forged signature, see Phillips v. Ford, 9 Pick. (Mass.) 39; WELLING- TON V. JACKSON, 121 Mass. 157. SB OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom.^"" Anything from which it will appear that a person intended to make the instrument his own is sufficient."^ Where a note is signed by two or more persons, if it contains the words "we promise to pay," it is joint; ^^^ but, if it contains the words "I promise to pay," it is joint and several.^^^ Certainty as to Parties — Maker — Drawer. The parties to a bill or note must appear on the face of the instru- ment, and must be certain. Thus an instrument whereby A prom- ises to pay, but which is signed "A or else B," is not a promissory note.^^* A promissory note without a maker, or a bill of exchange without a drawer, is an impossibility.^'" In McCALL v. TAYLOE ^^« an instrument was written in the following form: "Four months after date, pay to my order the sum of £300, for value received. To Captain Taylor, ship 'Jasper.' " There was no signature of any drawer; but written across the instrument by the defendant were these words: "Accepted, William Taylor." It was held that this could not be declared on either as a bill or as a note, since it was only an inchoate and imperfect instrument. This instrument was also imperfect because it lacked a payee; but, had a payee been designated, it would, by virtue of the acceptance, have been good as a promissory note, as will be explained in the next paragraph. Moreover, had the instrument designated a payee, the acceptance 130 Ciason v. Bailey, 14 Johns. 485; Saunderson v. Jackson, 2 Bos. & P. 238; Welford v. Beazely, 3 Atk. 503. 131 In the case of TAYLOR v. DOBBINS, it was held that the allegation that the note was that of the defendant, and that "manu sua propria scrlpsit" was sufficient without his signature at the end, since his name appeared in the instrument. 1 Strange, 399. 132 Barnett v. Juday, 38 Ind. 86; Groves v. Sentell, 153 TJ. S. 465, 14 Sup. Ct. 898. 133 CHAFFEE V. JONES, 19 Pick. (Mass.) 263; Ely v. Clute, 19 Hun (N. Y.) 35; Salomon v. Hopkins, 61 Conn. 49, 23 Atl. 716; Dill v. White, 52 Wis. 456, 9 N. W. 404. See Neg. Inst. Law, § 36, subd. 7. 134 FERRIS V. BOND, 4 Barn. & Aid. 679. i35Vyse V. Clarke, 5 Car. & P. 403; May v. Miller, 27 Ala. 515; Tevis t. Young, 1 Mete. (Ky.) 197; REG. v. HARPER, 13 Cent. Law J. 174; STOES- SIGER V. RAILWAY CO., 3 El. & Bl. 549, 23 Law J. Q. B. 293. 180 34 Law J. C. P. 365. §§ 26-30) SPECIFICATION OF PARTIES. 57 and delivery by the acceptor would have operated as authority to the payee or other legal holder to insert his own name as drawer, and thus to perfect the instrument as a bill of exchange. Such im- plied authority results from the fact that the instrument is delivered by the acceptor, who must be taken to intend the natural conse- quence of his act, in order that it may be put into circulation, which cannot be completely accomplished without perfecting it in the man- ner indicated.^'' Designation of Drawee. So, also, without a drawee, an instrument cannot be a bill of exchange. The reason for this is that the first essential of a bill is an order, and, a drawee not being nominated, the instrument must fail.^'^ It is inherent in its nature that there must be a drawee, who in theory has funds of the drawer, which he is bound to apply upon the draft. The courts, however, are frequently able to sustain as a promissory note an instrument which for lack of a drawee is imperfect as a bill of exchange; for, where the essentials of a note are present, the courts will enforce the obligation in spite of formal inaccuracies. In PETO v. EEYNOLDS,^^' where an instrument otherwise in the form of a bill was not addressed to any one, but across the face was written "Accepted," over what purported to be the defendant's signature. Barons Parke and Alderson both agreed that, while they could not treat the instrument as a bill, because of the absence of the drawee's name, they would, on proof of the de- fendant's signature, hold it to be a promissory note. This is the principle of BLOCK v. BELL,^^» where an instrument in the form of a promissory note was not signed at the foot, but was addressed to the defendant, who wrote across it "Accepted," and signed his name thereunder. It was held that this signature, though in terms 137 HARVEY V. CANE, 34 Law T. (N. S.) 64. In this case the bill without the name of the drawer was accepted by the defendant, and given by him to C, by whom it was given to the plaintiff, who inserted his own name. It was held that the acceptance was with a view to negotiation, and that C. gave what authority he had to the plaintiff. See MOIESB v. KNAPP, 30 Ga. 942; HOPPS V. SAVAGE, 69 Md. 516, 16 Atl. 133. 138 See Neg. Inst. L. § 20, subd. 5. 139 9 Exeh. 410. 1" 1 Moody & R. 149. 58 OF NEGOTIABI^ BILLS AND NOTES. (Ch. 2 an acceptance, acted as an adoption of the promise, and that the instrument was a promissory note. And the courts have even gone so far as to say that, if the drawee be not specified in the bill, but be otherwise capable of identification from it, that will suffice. In GRAY V. MILNEE,"^ the bill was addressed, 'Tayable at No. 1 Wil- mot St., opposite the Lamb, Bethnal Green, London," and the argu- ment was that, not being addressed to any one, it was not a bill of exchange. It appeared, however, in answer to this, that "Ac- cepted. Chas. Milner" was written across the face of the bill. The court held that this was a bill of exchange; Dallas, J., saying that the direction to a particular place could only mean to the person who resided there, and that the defendant, by accepting it, acknowl- edged that he was the person to whom it was directed. Of GEAY V. MILNEE it may be said that it can only be supported upon the theory that a bill of exchange made payable at a particular place of residence or of business can only be meant to be addressed to the person who resides or does business at that place. But it may also be said that such is certainly a very strained construction of the law,^*^ and it is to be questioned whether the courts would to-day adopt such a view of this rule if the case were presented to them afresh.^** It would seem, rather, subject to the rule of inter- pretation governing ambiguous instruments, that its acceptance must evidence an intention to incur an obligation, and although it did not fulfill the requisites of a bill of exchange, the holder might treat it as a promissory note,^** and the courts would clearly give it effect as such. The principle is the same where the drawer and 141 8 Taunt. 739. An action was brougM on the follo-wlng writing: "Oct. 21, 1804. Two months after date, pay to the order of John Jenldns £78, Us., value received. Thos. Stephens. At Messrs. John Morson & Co." It was held that the instrument was a bill of exchange, and that Morson & Co. could be considered the drawees. SHTJTTLEWOETH v. STEPHENS, 1 Camp. 407. 142 DAVIS v. CLARKE, 6 Q. B. 16; Story, Bills (Bennett's Ed.) 58; 1 Pars. Notes & B. 62. 143 BALL V. ALLEN, 15 Mass. 435; WATKOTJS v. HALBEOOK, 39 Tex. 572. 144 BDIS V. BUEY, 6 Barn. & C. 433; BLOCK v. BELL, 1 Moody & E. 149; DRUMMOND v. DEUMMOND, reported in 1 Ames, Cas. Bills & N. p. 883, though see, contra, Shuttleworth v. Stephens, 1 Camp. 407; ALLAN v. MAW- SON, 4 Camp. 115; Eex v. Hunter, Euss. & E. 511; FUNK v. BABBITT, 156 111. 40S, 41 N. E. 166. See Neg. Inst. L. § 36, subd. 5; Id. § 214. §§ 26-30) SPECIFICATION OF PARTIES. 5S drawee are ostensibly different, though in law the same person. In Fairchild v. Ogdensburgh E. Co.,"" the instrument was an order drawn by the president of the roailroad upon its treasurer directing the latter to pay A B, or order, a certain sum of money, and was, in effect, an order of the corporation upon itself. Here the court of appeals said, because there were not the two parties requisite for a bill of exchange, the instrument was not a bill of exchange, but, following the authority of the English courts, that it was a prom- issory note. Designation of Payee. It is likewise essential to a bill of exchange or promissory note that a payee be designated therein."^ In GIBSON v. MINET,"' Chief Baron Eyre declared: "If I put in writing these words: 'I promise to pay £500 on demand, value received,' without saying to whom, it is waste paper. If I direct another to pay £500 at some day after date, for value received, and not say to whom, it is waste paper." ^*' The payee must be certain; but any words which with reasonable certainty designate a person as payee are enough. An acknowl- edgment of a balance due A, for which "I promise to pay," is a promise to pay A.^** It is not necessary, moreover, that the designa- tion be by name, but a description of the payee is sufficient.^^" "Bearer" is a sufficient designation; ^"^ and, somewhat analogously, lis 15 N. Y. 337. 148 Rex V. Randall, Russ. & R. 195; McINTOSH v. LYTLE, 26 Minn. 339, 3 N. W. 983. See, also, TITTLE v. THOMAS, 30 Miss. 125; Bennington v. Dins- more, 2 Gill (Md.) 848; RICH v. STARBUCK, 51 Ind. 87; Storm v. Stirling, 3 EI. & Bl. 832; ADAMS v. KING, 16 lU. 169; GRAY v. BOWDEN, 23 Pick. (Mass.) 282; Osgood v. Pearsons, 4 Gray (Mass.) 455. "To Charles R. Whltesell et al. or order" is bad for -uncertainty. GORDON v. ANDERSON, 83 Iowa, 224, 49 N. W. 86. "To the order of A" is good'. FISHER v. POMFRET, 12 Mod. 125. See Neg. Inst. L. § 20, subd. 4; Id. §§ 27, 28. i*T 1 H. Bl. 618. 149 Walrad v. Petrie, 4 Wend. (N. Y.) 576; FERRIS v. BOND, 4 Barn. & Aid. 697; Douglass v. Wilkeson, 6 Wend. 637; Heman v. Francisco, 12 Mo. App. 560. 148 CHAD WICK V. ALLEN, 1 Strange, 706. 160 Daniel, Neg. Ins.t. § 99. , 161 OthfT words which indicate that the instrument is to be transferable by delivery have been construed as entitled to the same effect "Holder,"— PUTNAM V. CRYMES, 1 McMul. (S. 0.) 9; "bills payable,"— WILLETS v. BANK, 3 Duer (N. Y.) 121; Mechanics' Bank v. Straiton, •42 N. Y. 365; "order 60 OF KEGOTIABLE BILLS AND NOTES. (Ch. 2 it is held that a bill or note is good if a blank space is left for inser- tion of the name, the issue of the instrument in this form operating as authority to any bona fide holder to insert his name.*°^ The payee may be designated by his office. Thus "the trustees of the will of A," or "the administrators of the estate of A," are sufflcient descriptions, since the payees are ascertainable.^" The person des- ignated, however, must have a natural or legal existence. For this reason a promise to pay to "the estate of Moses Lyon, deceased," has been held bad.^" Not unlike this case is OOWIE v. STIK- LING-j^^" where a note was made payable nine months after date "to the secretary for the time being" of a certain society. This was construed as a promise to p^y to the person who should be secretary nine months thence, and, inasmuch as it could not be ascertained at the date of issue who that person would be, it was held that the instrument could not take effect as a note. An order or promise to pay to A or B is not a bill or a note, because the instrument is payable to either, and that only on the contingency of its not being paid to the other.^^' But such instru- ments are to be distinguished from those in which the designation of the payees, though alternative in form, is not such in fact, as in of 1658,"— WILLETS v. BANK, supra; "to J. S. or ship Fortune or bearer," —GRANT v. VAUGHAN, 3 Burrows, 1526. See Neg. Inst. L. § 28, subd. 4. 152 CEUCHLBY V. CLAKANCB, 2 Maule & S. 90; Rand. Com. Paper, § 167. Post, p. 258. 153 Administrators of A, deceased, ADAMS v. KING, 16 111. 169; MOODY V. TIIREKELD, 13 Ga. 55; or to trustees of the will of A, MBGGINSON v. HARPER, 2 Cromp. & M. 822; or the heirs of A, Bacon v. Fitch, 1 Root (Conn.) 181. See Neg. Inst. L. § 27, subd. 6. 154 Hendricks v. Thornton, 45 Ala. 309. See, also, LYON v. MARSHALL, 11 Barb. (N. Y.) 242. But In SHAW v. SMITH, 150 Mass. 166, 22 N. B. 887, "Pay to F. B. Bridgman's estate or order" was construed as an order to pay to the administrators,— a construction which is certainly according to the com- mon acceptance of the words used. 155 6 El. & Bl. 333. 156 BLANCKENHAGEN v. BLUNDELL, 2 Barn. & Aid. 417; MUSSELMAN V. CAKES, 19 111. 81. Neg. Inst. L. § 27, provides that the instrument may be drawn payable to the order of "one or some of several payees." This seems to change the law. But quaere whether it does more than provide for such cases as WATSON v. EVANS, infra. §§ 26-30) SPECIFICATION OF PARTIES. tjl DAVIS V. GAEE/" where the promise was to pay "Joseph M. Whit- ney, Charles A. Davis, and Louis McLane, Trustees of the Apalach- icola Land Company, or their successors in office, or order." It was held that the designation was not uncertain, since payment could be made to the "successors" only in case the trustees named had ceased to be such; and the ambiguity, if any, would arise from a change of trustees after the note took effect. So a note was held good where the promise was "to pay A, B, and C, or their order, or the major part of them." '=* This was construed as a promise to pay to all three, or to the order of all three or of any two, the effect being that A, B, and C were joint payees, but that any two were authorized to sign for all. On the same principle the payee was held certain in a note payable "to the trustees of the Methodist Episcopal Church, or their collector," the court observing that the rule prohibiting alternative payees does not apply "where the in- strument discloses the fact that one of the two persons named is named as the agent of the other to receive the money." ^^' An instrument in the form of a note made payable to the order of the maker, or in the form of a bill where the payee and acceptor are one and the same person, is inoperative as a note or bill. Since a man cannot contract with himself, such a writing, unnegotiated, gives rise to no obligation. If, however, the payee negotiates the instrument, it becomes by his indorsement a valid note or bill in the hands of the holder, the original contract and the indorsement taken together becoming a binding contract, though an informal one, between the maker or acceptor and the indorsee.^'" Fictitious Payee. Bills and notes are sometimes made payable to the order of a ficti- tious payee; and where such an instrument, purporting to be in- 15' G N. Y. 124. To the same effect, KING v. BOX, 6 Taunt. 325. So of a promise to pay "A or heirs." KNIGHT v. JONES, 21 Mich. 161. 168 WATSON V. EVANS, 1 Hurl. & C. 662. 169NOXON V. SMITH, 127 Mass. 485. To the same effect, HOLMES v. JAQUES, L. E. 1 Q. B. 376. i«o Hooper v. Williams, 2 Bxch. 18; MOSES v. BANK, 149 U. S. 298, 13 Sup. Ct. 900. So where drawer, acceptor, and payee were one and the same. ■See Neg. Inst. L. § 27, subd. 2. Of. § 820. COM. v. BUTTEEICK, 100 Mass. 12. Neg. Inst. L. § 27, subd. 3. 62 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 dorsed by the person named as payee, passes into the hands of an innocent holder, the question arises as to what are his rights a& ajcainst the original parties. The rule to be deduced from the au- thorities is that as against an acceptor, drawer, or maker, who had knowledge of the fictitious character of the payee, such an instru- ment, in the hands of an innocent holder, may be treated as valid, and (somewhat anomalously) as if payable to bearer; but that, if the original party was ignorant of the fictitious character, he can- not be charged.^"^ Thus the principle of liability in such case rests on estoppel. Again, if the holder, when he received the instru- ment, knew that the name of the payee, and consequently the in- dorsement, was fictitious, he cannot recover against the acceptor or maker, although the latter had knowledge of the facts when he accepted the bill or made the note.^''' The last branch of the rule has been changed in some jurisdictions by legislation, which pro- vides that a note payable to the order of a fictitious person shall, if negotiated, have the same effect, as against persons having knowl- edge of the facts, as if payable to bearer.'^*^ Such appears to be 181 MINBT V. GIBSON, 3 Term R. 481, affirmed house of lords, 1 H. Bl. 569v BENNETT v. FAKNBLL, 1 Camp. 130, 180; ARMSTRONG v. BANK, 46 Ohio St. 512, 22 N. B. 866; SHIPMAN v. BANK, 126 N. Y. 318, 27 N. E. 3T1. But see Lane v. Krekle, 22 Iowa, 399; Ort v. Fowler, 31 Kan. 478, 2 Pac. 580. 162 HUNTER v. JEFFERY, Peake, Add. Cas. 146; Rand. Com. Paper (2a Ed.) § 163. 163 In New York this doctrine was changed by statute to the effect that a note "made payable to the order of the maker thereof, or to the order of a fic- titious person, shall, if negotiated by the maker, have the same effect and be of the same validity, as against the maker and all persons having knowledge of the facts, as if payable to the bearer." This statute, the spirit of whiclii has been followed in other jurisdictions (FOSTER v. SHATTTTCK, 2 N. H. 446), was extended in New York In Its operation. In Mechanics' Bank v. Strai- ten, 3 Abb. Dec. 269, the check in suit was demurred to because it was in form: "Pay to bills payable, or order." It was declared by the general term of the supreme court to be nonnegotiable, but the court of appeals said that by using the words "or order" the maker showed he intended that the instrument should be transferred, and be negotiable. In naming the persons to whose or- der the instrument Is payable the maker limits the negotiability to those per- sons, and imposes the condition of indorsement upon them upon its first trans- fer. But no such intention is indicated by a fictitious or an impersonal payee; hence words of negotiability, in such connection, are capable of no reasonable- §§ 31-32) CAPACITY OF PARTIES. 63 the effect of the "Negotiable Instruments Law," *'* which provides that "the instrament is payable to bearer ♦ • » when it is pay- able to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable." On the other hand, the English "Bills of Exchange Act" provides, without qualification, that, "where the payee is a fictitious or non-existing person, the bill may be treated as payable to bearer." ^" CAPACITY OF PARTIES. 31. The capacity of parties is in general governed by the same rules as their pow^er to make a contract. It is of tvro kinds: (a) Capacity to incur liability. (b) Capacity to transfer the instrument. 32. The folio-wing classes of persons incur no liability, though they may make a valid transfer of the instrument: (a) A person non compos mentis.'^" Cb) An infant.'*' (c) In some jurisdictions, a married woman. '^ (d) A corporation, when the act is ultra vires.'" interpretation except that the bill shall be negotiable without Indorsement. In other words, it is to be treated in the same manner as if it had been made payable to bearer. In Irving Nat. Bank v. Alley, 79 N. Y. 536, the court went further. It held that, even where a party upon a note of this character, against whom a liability is sought to be enforced, does not have knowledge of the facts, in all other eases than that of the fictitious payee, he cannot raise the point that It was payable to the maker's or drawer's order, but will be estopped from doing so. Thus the old common law is substantially changed. i«* Section 28, subd. 3. 166 BANK OF ENGLAND v. VAGLIANO [1891] App. Cas. 107, reversing 23 Q. B. Div. 243, 22 Q. B. Dlv. 103; GLUTTON v. ATTENBOKOUGH [1897] App. Cas. 90, affirming [1895] 2 Q. B. 707. 16 IS See post, § 99, pp. 226-234. 16T See post, § 94, pp. 218-220. 168 See post, § 95, p. 22L 169 See post, § 96, pp. 222-220. 64 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 S3. The following persons may transfer, but can incur only personal liability: (a) Executors. (b) Administrators. (c) Guardians. (d) Trustees. The generic principles governing the capacity of parties to con- tract are not changed in their application to bills and notes. A full discussion of that liability belongs more properly to a work up- on the general subject of contracts than to a work of this character. The defenses of persons non compos mentis, infancy, coverture, and of transcending corporate povs^ers, and their effect upon the position of the bona fide holder, will be considered to a limited degree later on. We speak here in a most general way of persons acting in a representative capacity as parties to negotiable paper. Executors, administrators, guardians, and trustees occupy at least one general property relation in common: an estate is com- mitted to them to apply. An executor or administrator is the hand of the court to collect property and pay debts. A guardian or trustee has, in addition to these functions, to hold property, and to keep it intact as far as in ordinary human prudence it can be done. They hold this property, as the law phrases it, in "autre droit," which means that they hold for others, and not in their own right. They are allowed by lav/^ to charge the estates left in their care with certain disbursements, which, in general, are those neces- sary to carry into force and effect the estates which they are to ad- minister. But, aside from these, the estate cannot be bound. It cannot, for example, be bound by an executory contract If the representative makes such a contract, the law, in order that the obligation may stand, rather than fall, holds the representative per- sonally responsible, not the estate which he represents. Thus, in the case of the executory contract of negotiable paper, the law deems the descriptive character setting forth the representative character in which the party has signed as surplusage, and treats it as his personal obligation.^'" This principle is exteiided so far 170 See Willis v. Sharp, 113 N. Y. 586, 21 N. B. 705. The main cases on this point are AUSTIN v. MUNKO, 47 N. Y. 360; Ex parte Garland, 10 Ves. § 34) AUTHORITY OF AGENT. G5 that an executor is not permitted to charge the estate, although he is expressly authorized to do so by the terms of the will under which heacts."^ This, however, does not preclude the power of transfer. If a bill or note be negotiable, it may be indorsed, but the executor, guardian, or trustee indorsing is personally liable unless he exempts himself by an indorsement without recourse.^^* AUTHORITY OF AGENT. 34. The power of persons to incur liability as par- ties to, and to transfer, negotiable instruments by the hands of others is governed by the general rules appli- cable to principals and agents. EXCEPTION — An undisclosed principal cannot sue or be sued as a party to a negotiable instrument. Signature iy Agent — Lidhility. A person may become a party to, or transfer, a bill or note by the hand of an agent. Whether one whose name purports to have been signed by another as drawer, acceptor, maker, or indorser is liable as such depends upon the authority, express or implied, of the person who wrote the signature. If such authority existed, the principal, and he alone, is bound. No particular form of appointment is necessary, and the authority of the agent may be established as in other cases of agency.^^^ For example, if a bill or note be drawn or indorsed "A B by C D," or "A B by C D, His Attorney," it appears clearly that A. B. is principal, provided C. D. had a right to sign A B's 119; Falrland v. Percy, L. R. 3 Prob. & Div. 217; Labouchere v. Tupper, 11 Moore, P. C. 198; Downs v. Collins, 6 Hare, 418. See, also, Thompson v. WhJtmarsli, 100 N. Y. 35, 2 N. E. 273. 171 Delaware, L. & W. E. Co. v. Gilbert, 44 Hun, 201. Modified by Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, which holds that, where a will directs an executor to carry on business, the funds of the estate in the business are bound in equity for the payment of debts. It, however, admits that the eiecutor is personally liable in the first event 172 Eex V. Thorn, 1 Term R. 487; CHILDS v. MONINS, 5 Moore, 282; Harri son V. McClelland, 57 Ga. 531; Tryon v. Oxley, 3 G. Greene, 289; Davis v. French, 20 Me. 21; WISDOM v. BECKER, 52 111. 346. "3 See Neg. Inst. L. § 38. Cf. §§ 38-40. NEG.BILLS.— 5 $6 OF NEGOTIABLE BILLS AND NOTES, (Ch. 2 Dame. So, also, where the form of signature is "C D for A B," or "O D, Agent for A B." "* If, however, C D had not authority, no per- son is bound on the instrument, for O D, in the cases put, did not undertake to be bound. G D would, indeed, be liable, but only upon an impUed warranty of authority, to the person to whom he delivered the instrument or the assignee of the latter'e right of action, for the damages resulting from the breach.^" In cases of simple contract an undisclosed principal may take advantage of the act of an agent who has made a contract in his behalf, and may sue or be sued there- on; but this doctrine does not extend to instruments under seal, or to bills and notes. No person can be party to an action upon a nego- tiable instrument unless he appears thereon to be such.^'» Therefore, if the signature be "O D," although he was in fact agent for A B, evi- dence is not admissible to show that D intended to bind A B. And even if, under the same circumstances, the signature was written "0 D, Agent," the name of the principal being undisclosed, the word "Agent" is regarded as descriptio personse, and C D is bound personally.^" There are, however, conflicting decisions.^'" 17 4 Daniel, Neg. Inst. § 298. iTo BARTLETT v. TUCKER, 104 Mass. 336; WHITE v. MADISON, 26 N. T. 117; Taylor v. Shelton, 30 Conn. 122. It seems that by Neg. Inst. L. § 38, the holder in such cases may sue the agent on the instrument, If he was not authorized to sign for the principal. 176 SIFPKIN V. WALKER, 2 Camp. 308; In re Adansonia Co., L. R. 9 Ch. 635; GRIST V. BACKHOUSE, 20 N. C. 362; Arnold v. Sprague, 34 Vt. 409; Pease V. Pease, 35 Conn. 131; Texas L. & T. Co. v. Carroll, 63 Tex. 51; Stackpole v. Arnold, 11 Mass. 27; Hyde v. Paige, 9 Barb. 150; Nash v. Towne, 5 WaU. 689. See Neg. Inst. L. § 37. 17 7 WILLIAMS V. ROBBINS, 16 Gray (Mass.) 77; ANDERTON v. SHOUP, 17 Ohio St. 125; Anderson v. Pearce, 36 Ark. 293; STINSON v. LEE, 68 Miss. 113, 8 South. 272. It is, however, generally held that a corporation may be treated as a party to a bill or note where. Instead of the corporate name, ap- pears the name and title of Its managing officer, as "A B, Cashier," or "A B, 17 8 Such authorities as Mott v. Hicks, 1 Cow. 540, GREEN v. SKEEL, 2 Hun, 486, and Moore v. McClure, 8 Him, 558, in New York lay down a different doctrine. It appears to have been the sense of the court in Mott v. Hicks that extrinsic testimony might be admitted to show that where an indorser signed his name as agent it was competent to show that it was agreed between the parties that such indorsement was merely for the purpose of transfer, and that the indorser, as agent, was not personally llabl& This Is alao the doctrine §§ 35-37) DELIVERY OF INSTRUMENTS. 67 DELIVEEY OP INSTEUMENTS. 35. A bill or note is inoperative as against the drawer or maker untU delivery. 36. Delivery means transfer of possession with, intent to transfer title, and is of two kinds: (a) Actual delivery, which is effected by the manual passing of the instrument itself to the payee or his agent. (b) Constructive delivery, which is effected by direc- tion to a third person in actual possession of the instrument to deliver it to, or to hold it for, the payee. 37. Delivery in escrow means delivery to a third per- son to hold until a certain event happens, or a certain condition is fulfilled. A bill or note delivered in escrow- President"; the such designation of the oflBcer with his title being' deemed equivalent to the designation of the corporation. Bank of Genesee v. Banlt, 13 N. T. 309; First Nat. Bank v. Hall, 44 N. Y. 395; ChUIIcothe Branch of State Bank v. Fox, 3 Blatchf. 431, Fed. Gas. No. 2,683. See 2 Ames, Gas. Bills & N. 873. Mr. Daniel states this as an exception confined to hank cashiers. Dan- iel, Neg. Inst. § 417. See, also, Casco Nat. Bank y. Glark, 139 N. T. 307, 34 N. B. 908; Souhegan Nat. Bank t. Boaxdman, 46 Minn. 293, 48 N. W. 1116. Neg. Inst. L. § 72, provides that, "where an instrument is drawn or indorsed to a person as 'cashier' or other fiscal officer of a bank or corporation, it is deemed prima facie to be payable to the bank or corporation," etc. Where the names of the agent and principal both appear on the Instrument, It is a question of construction which is the real party. Thus, where the name of the principal appears in the heading, and the paper is signed by one purporting to be agent, It has been held that the principal is liable. CHIPMAN v. FOSTBK, 119 Mass. 189; HITCHCOCK v. BUCHANAN, 105 V. S. 416. in GEEEN v. SKEEL, where It Is held that a person signing his name as agent in the business of his agency is not personally liable. See, also. May v. Hewitt, 33 Ala. 161. On the other hand, in DB WITT v. WALTON, 9 N. Y. 571, the addition of the word "agent" is treated as mere descriptio personse, and this is emphasized and affirmed in PumpeUy v. Phelps, 40 N. Y. 59, and in a dictum In Briggs v. Partridge, 64 N. Y. 359, 363, this is further approved. 68 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 becomes absolute in the bands of a bona fide purchaser for value, whether or not the event happens or the con- dition is fulfilled. The inception of a note is defined by Judge Piatt to mean "when it was first given, or when it first became the evidence of an exist- ing contract." "^ It has no legal inception until it is delivered as evidence of a subsisting debt.^*° The mere writing and signing of a bill or note, which the drawer or maker retains in his hands, forms no contract.^*^ No person has then a right of action upon it any more than if it were blank paper.^^^ The inception of the paper is when there came into existence a right of action upon it^'^ This is because while the note or bill is in the maker's hands, it can be erased, canceled, or revoked. It cannot, therefore, be an evidence of indebtedness until it is beyond such possibility. The decisive step for this is the delivery.^'* Two things must concur in a delivery. The first is the transfer, actual or constructive, of the possession of the instrument; the sec- ond an intent to transfer the title on the part of the transferrer. The minds of both parties, to this extent, must concur. This is the 179 Marvin v. McCuUum, 20 Johns. 288. ISO Delivery is essential to the validity of a bill or note. MEEKER v. SHANKS, 112 Ind. 207, 13 N. E. 712, Johns. Cas. Bills & N. 31. "As a gen- eral rule, a promissory note, like any other written contract, has no legal in- ception or valid existence, as such, until it has been delivered in accordance with the purpose and intent of the parties." BUESON v. HUNTINGTON, 21 Mich. 416; upon point, see, also, CHIPMAN v. TUCKER, 38 Wis. 43; HILLS- DALE COLLEGE V. THOMAS, 40 Wis. 661; CLINE v. GUTHRIE, 42 Ind. 227. 181 GALE V. MILLER, 54 N. Y. 536; Bayley v. Taber, 5 Mass. 286; Free- man V. Ellison, 37 Mich. 459; WOODFORD v. DOEWIN, 3 Vt. 82; Ward v. Churn, 18 Grat. (Va.) 801; MICHIGAN INS. CO. v. LEAVENWORTH, 30 Vt. 11. . 182 It is held, however, in some jurisdictions, that though paper was never delivered, but was wrongfully taken from the possession of the maker, he is estopped, as against a bona fide purchaser for value, from denying its execu- tion. Post, p. 267. 183 Eastman v. Shaw, 65 N. Y. 527, 528. 184 Catlin V. Gunter, 11 N. Y. 368; COWING v. ALTMAN, 71 N. Y. 435, 79 N. Y. 167; Kinzie v. Farmers' & Mechanics' Bant, 2 Doug. (Mich.) 105; YIN- TON V. PECK, 14 Mich. 287. See Neg. Inst. L. § 35. Cf. section 6. §§ 35-37) DELIVERY OP INSTRUMENTS. 69 law laid down "" in a case where the question was whether a check for $10,000 in gold left upon a clerk's desk, unknown to him, and without his consciously accepting it, was a delivery of it, and the court said it was not. And in a case where ^^° it was the intention to deliver the instrument left in escrow on the 1st of May, but on April 30th the transferrer died, it was held that there could have been no actual delivery nor intention to deliver the instrument. The necessary elements to a delivery were wanting. So where the payee of a bill indorsed it, but died before delivering it, it was held that his executor, finding it among his papers, could not consummate the transfer by delivering it.^*^ On the other hand, such acts as hand- ing completed notes to the payee, who, though objecting to the form, retained them;^*^ or depositing completed notes, properly ad- dressed, in the post oflBce; ^*° or giving a duplicate bill in place of one lost, which the payee treated as an original, — ^have been held to constitute sufficient deliveries. It is to be noted, however, that the delivery need not be to the payee, nor need the intent of the transferrer to transfer title be communicated to him. For, as will be seen, a bill or note may be delivered in escrow, and take effect) on performance of the condition, without knowledge or actual as- sent of the payee; ^'"' and a note delivered in a sealed envelope, to be opened after the maker's death, is operative, although the payee does not become aware of the existence of the note until after the 186 Kinne v. Ford, 52 Barb. 106, affirmed 43 N. Y. 587. iseArtcher v. Whalen, 1 Wend. 179. 187 BROMAGE v. LLOYD, 1 Bxch. 32. This action was in assumpsit on a note in writing, made by defendants, indorsed in blank by the payee, and, after the death of the latter, delivered to the plaintiffs by the payee's executrix, without her indorsement. It was held that those to whom the note was so- delivered had no right to sue upon it, for a "transfer" was not effected thereby. In the case of a note signed in Florence, and mailed to the maker's brother io London, who there delivered it to the payee, it was contended that the cause of action arose in the former place, but it was held that no contract arose until its delivery, and that consequently the cause of action arose within the juris- diction of such place of delivery. CHAPMAN v. COTTRELL, 13 Wkly. Rep. 843. 188 Bodley v. Higgins, 73 111. 375. 180 REX V. LAMBTON, 5 Price, 428; Kirkman v. Bank of America, 2 Cold. (Tenn.) 397. 100 WORTH V. CASE, 42 N. Y. 362; 2 Ames, Cas. Bills & N. 878. 70 OF NEGOTIABLE BILLS AHD NOTES. (Ch. 2 death occurs.*** The outward and visible indication of delivery is possession, because, in nine cases out of ten, where a man holds paper, he has a right to hold it. And the courts have, as* we shall see, confirmed this business view accordingly, declaring that, when a bill or note is found in the hands of a payee, it will be presumed that it was legally delivered to him, and was in fact his.*** But this presumption may be rebutted.**' Delivery may also be upon conditions.*'* Deliveries upon condi- tions are of two classes : delivery as an escrow, and delivery to the other party to the instrument upon a condition. Delivery as an escrow is defined *"'' as a delivery to a third person, made to await the happening of an event, or performance of a condition, or some affirmative action on the part of the other party, before he is enti- tled to the absolute delivery of the instrument, as distinguished from the affirmative action of the party who delivers the instru- ment in escrow. The authorities agree that a delivery in escrow has two elements: It must be to some person not ultimately en- titled to receive it; and the delivery must take effect and the title to the instrument pass the instant the condition of the escrow is fulfilled, even though the depositary has not formally delivered it to the person entitled to the possession.*'" In these respects it is like the escrow of a deed, from the analogy of which it is in fact drawn. There are, however, these distinctions: A deed once de- 181 WORTH V. CASE, supra; DEAN v. CAERUTH, 108 Mass. 242. 182 Griswold v. Davis, 31 Vt. 390; RUSSELL v. WHIPPLE, 2 Cow. (N. T.) 536; Peets v. Bratt, 6 Barb. (N. Y.) 662; Chappell v. Bissell, 10 How. Prae. (N. T.) 274; Marshall v. Rockwood, 12 How. Prac. (N. Y.) 452; Keteltas t. Myers, 19 N. Y. 231; Cordier v. Thompson, 8 Daly (N. Y.) 172. i»a Scalfe v. Byrd, 39 Ark. 568; Chandler v. Temple, 4 Cush. (Mass.) 285; Rhine v. Rohinson, 27 Pa. St. 30; Roberts v. Jackson, 1 Wend. (N. Y.) 478. i»4 BELL V. INGESTRE, 12 Adol. & E. (N. S.) 319. In this case one Ed- wards, having drawn bills and procured acceptance by defendant indorsed the bills, and sent them to the plaintiff, with which he was to take up overdue bills. It was stipulated as an express condition that such overdue bills should be returned to him. It was held that the indorsement was incomplete until the condition precedent had been fulfilled by the return of the overdue bills. BEN- TON V. MARTIN, 52 N. Y. 574. 19 5 WORTH V. CASE, 42 N. Y. 367. 100 Edw. Bills & N. § 243; Daniel, Neg. Inst. 68, and cases cited; Earl T. Peck, 64 N. Y. 596, §§ 35-37) DELIVERY OF INSTRUMENTS. 71 livered to be held in escrow by a third party, and wrongly passed on by him, is subject to defenses, even in the hands of a purchaser for value without notice, but a negotiable instrument is not.^*'' A deed being delivered conditionally to the obligee, parol evidence that it was conditional is admissible.^"* A delivery upon a condition is where the instrument is delivered to the payee, to be held by him pending some future event. It is explained in Juilliard v. Chaffee.^"' There Judge Daaforth collates the authorities, and deduces the rule that a party sued by his prom- isee may always show that the instrument was delivered to the payee to take effect only on the happening of some future event, or that its design and object were different from the effect of its language if taken alone.^°° In that case, as the note did not indicate all the agreement, it was held the full purpose of its execution might be shown. So in BENTON v. MAKTEN,'"'^ the law was laid down that conditions might be affixed to the delivery of a note in the hands of a payee, which, as between the immediate parties, would be binding, and a defense. This does not apply to the bona fide holder.""'' But the authorities are not unanimous, many cases hold- ing that the delivery cannot be upon condition, or in escrow, to the payee himself. ""^ 1" Daniel, Neg. Inst. § 68; VALLETT v. PARKEK, 6 Wend. (N. Y.) 615; FEARING V. CLARK, 16 Gray (Mass.) 74; Gamer y. Fite, 93 Ala. 405, 9 South. 367; GRAFF v. LOGUE, 61 Iowa, 704, 17 N. W. 171. CHIPMAN v. TUCKER, 38 Wis. 43, contra. 18 8 Couch V. Meeker, 2 Conn. 302; Prutsman v. Baker, 30 Wis. 644. 189 92 N. Y. 529. 280 Seymour v. Cowing, *40 N. Y. 532; Eastman t. Shaw, 65 N. Y. 522; Blossom V. Griffin, 13 N. Y. 569; Hutchins v. Hebbard, 34 N. Y. 24; Barker v. Bradley, 42 N. Y. 316; Grlerson v. Mason, 60 N. Y. 394; Chapin v. Dobson, 78 N. Y. 75; Crosman v. Feller, 17 Pick. 171; Watkins v. Bowers, 119 Mass. 383; Brown t. St. Charles, 66 Mich. 71, 32 N. W. 926; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816. 281 52 N. Y. 570. 202 See § 93 et seq., post. Note, also, Bookstaver v. Jayne, 60 N. Y. 146. 203 STEWART V. ANDERSON, 59 Ind. 375; Clanin v. Machine Co., 118 Ind. 372, 21 N. E. 35; JONES v. SHAW, 67 Mo. 667; Carter v. Moulton, 51 Kan. 9, 32 Fac. 638. See 4 Am. & Eng. Enc. Law (2d Ed.) 205. 72 OF KEGOTIABLE BILLS A«D NOTES. (Ch. 2 DATE. 38. A date in a bill or note is not necessary to its va- lidity. The date of an instrument is not so necessary to it in law, that its absence avoids the instrument. It is not an essential charac- teristic of the instrument, as other qualities are characteristic of the instrument or of its negotiability.^"* For this reason the date may be supplied by parol,^"^ the date of delivery being the day of date; or it may be antedated or postdated,^"" or, if the date be left blank, all parties are deemed to consent that the holder may fill up the blank with a date.^°^ Legally speaking, the chief importance of a date is that it is presumptive evidence of the time of its actual execution, a presumption, however, which may be contradicted by parol evidence.^"* Likewise the place of date is supposed to be contemplated by the parties as the place of payment,^"" because, in the absence of all other guides to any information on this point, the courts turn to the instrument itself, and say the place of date is probably the place of residence of the parties, and it is reasonable to suppose that the parties contemplated the place of their resi- 2 04 See Neg. Inst. L. § 25, subd. 1. 205 COWING V. ALTMAN, 71 N. Y. 441; Davis v. Jones, 25 Law J. C. P. 91. 206 PASMORE v. NORTH, 13 East, 517; Frazier v. Trow's Printing & Book- binding Co., 24 Hun, 281; Gray v. Wood, 2 Har. & J. 328; McSHARRAN t. NEELBY, 91 Pa. St. 17; ALMICH v. DOWNEY, 45 Minn. 460, 48 N. W. 197. See Neg. Inst. L. § 31. Cf . § 36, subd. 3. 2 07 Knisely v. Sampson, 100 111. 574; MITCHELL v. dxJLVBR, 7 Cow. (N. Y.) 336. See Neg. Inst. L. § 32. As to filling blanks, post, p. 258. 20S Germania Bank v. Dlstler, 4 Hun, 633, affirmed In 64 N. Y. 642; DRAKE V. ROGERS, 32 Me. 524; BREWSTER v. McCARDELL, 8 Wend. 479. See Neg. Inst. L. § 30. 209 The dating of a promissory note Is prima facie evidence of the place of payment, as It Is presumptive evidence that the maker resides at the place of date. Where the maker Is known to have a residence which Is not changed when the note is payable, a regular demand must be made, regardless of the place of date. TAYLOR v. SNYDER, 3 Denlo, 145; see, also, BANK OF OE- LEANS V. WHITTEMORE, 12 Gray, 469. As to the presumption raised by the date as to the maker's residence, see Smith v, Philbrick, 10 Gray, 252; De- mond. V. Burnham, 133 Mass. 339. §39) VALUE RECEIVED. 73 dence as the place where the instrument was to be paid. It becomes important sometimes in determining whether the instrument is a foreign or inland bill or note,''^" and where presentment and demand are to be made, or where notices of dishonor are to be sent, and questions of that character. ''^^ These remarks are to be understood with some limitations. The date of a completed instrument cannot be changed unless by mutual consent without avoiding it.^^"* Nei- ther must it be understood that dating a note at a particular place makes that place the one at which payment should be demanded. It does not.^^' It merely is a presumption to guide the court. And, lastly, in practical affairs an instrument without date will not circu- late, because neither banks nor merchants will discount it. The date, in most instances, determines when the instrument is to be paid. And unless it has a date, or one is agreed upon and inserted, it is impracticable as a circulating medium. VALUE RECEIVED, 39. Value received is not necessary to be expressed in a negotiable instrument. The expression "value received" is an acknowledgment of the receipt of a consideration sufficient prima facie to support the con- tract, and make it a binding promise for the payment of money. It raises the various questions relating to consideration, which, so far as they pertain to the circulation of the instrument, are com- mented upon hereafter."^* In itself, with bills it means that a con- 210 Ante, p. 24. 211 STEWART v. EDEN, 2 Caines, 121 212 See § 105, post, -where a note is intended to bear date as of Its execution, but is wrongly dated by mistake, the mistalie may be corrected, except as to an Innocent purchaser who would be prejudiced. ALMICH v. DOWNEY, 45 Minn. 460, 48 N. W. 197. 213 ANDERSON v. DRAKE, 14 Johns. 114. It Is held in this case that where a note is not made payable at a particular place, and the owner has a known and permanent residence within the state, the holder is bound to make a demand at such residence in order to charge the indorser. Whoever takes such note is presumed to have made inquiry for the residence of the maker in, order to know where to demand payment. 21* See post, § 111 et seq. 74 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 sideration has been received by the drawer of the payee, or by the acceptor of the drawer, according as the bill has or has not been accepted.^^* With notes it implies a consideration received by the maker. ''^" Indorsers, from the mere fact of their indorsement, are deemed to have repeived a consideration, each indorser from his immediate indorsee. ^^'' And thus the instrument in its circulation bears upon itself prima facie proof of a consideration received by any of the parties against whom it is sought to be enforced. The student must, however, note that, although these words are well- nigh universal in negotiable bills and notes, they are in no wise necessary to them.^^' Their omission is unimportant, because the negotiable instrument itself imports a consideration. A mere pro- duction of the instrument on a trial is prima facie proof of the fact that it was given for a sufficient consideration.^^® The courts of New York in a late decision ^^° have declared that this rule ap- plies to certain classes of non-negotiable promissory notes, or at least to that class which import an absolute promise to pay money, but without words of negotiability. It is hard to say what effect 215 GRANT v. DA COSTA, 3 Maule & S. 351; BENJAMIN v. TILLMAN, 2 McLean, 213, Fed. Cas. No. 1,304; Higlimore v. Primrose, 5 Maule & S. 65; Thurman v. Van Brunt, 19 Barb. 409. 218 Clayton v. Gosling, 5 Barn. & C. 361, 8 Dowl. & K. 110. 217 Edw. Neg. Inst. § 439; Chit. Bills, 69; Story, Prom. Notes, 7, 81. 218 UnderUU v. Phillips, 10 Hun, 591; Arnold v. Sprague, 34 Vt. 402; Peo- ple V. McDermott, 8 Cal. 288; JENNISON v. STAFFORD, 1 Cush. (Mass.) 168; DEAN V. OARRUTH, 108 Mass. 242. This case holds that in an action on a promissory note the plaintiff sustains the burden of proof by producing the note and proving its execution. It is evidence under the hand of the promisor of a contract made upon a good consideration, even if the words "value received" are omitted. TOWNSEND v. DERBY, 3 Mete. (Mass.) 363; HATCH v. TRAYES, 11 Adol. & E. 702; FRANKLIN v. MARCH, 6 N. H. 364. See Neg. Inst. L. § 25, subd. 2. 218 Underbill v. Phillips, 10 Hun (N. Y.) 591; KIMBALL v. HUNTINGTON, 10 Wend. (N. Y.) 675; TOWNSEND v. DERBY, 3 Mete. (Mass.) 363. 220 CARNWRIGHT v. GRAY, 27 N. E. 835, 127 N. Y. 92. Post, pp. 205-274. ■See, also, CARVER v. HAYES, 47 Me. 257; FRANKLIN v. MARCH, 6 N. H. 364. Here the action was upon this instrument: "Good to R. C. or order for $30, borrowed money." And it was held that In this case the note "shows that It is founded upon a sufficient consideration, it purporting on its face to have been given for money borrowed; and 'good to R. C. or order' is equivalent to a, promise to pay R. C. or order." ■§ 40) DAYS OF GRACE. 75 this decision will have upon the rule that in case of a non-negotiable instrument, unless a consideration appeared upon the face of the instrument, and prima facie evidence was thus created by an admis- sion upon the instrument itself, a consideration must be proved.^^^ But it will perhaps be the case that, except in absolute promises for the payment of money, the latter rule will still prevaiL DAYS or GRACE. 40. Days of grace are days added to the nominal time of payment of all bills or notes except those impliedly or expressly payable on demand, and are computed by excluding the day of date and including the day of pay- ment. Originally, days of grace were days allowed the drawee or ac- ceptor of a foreign bill by the holder to enable him to provide funds to meet the bill. They were days obtained by the drawee or ac- ceptor through the grace of the holder. This was first custom, then law. These days are now extended to cases of negotiable inland bills and promissory notes as well as the foreign bills to which at first the custom was only appended. It extends under the common- law rules to all negotiable bills of exchange or notes,^^^ except those wherein the instrument is made payable on demand,""' or without specification of time, in which case on demand without grace is un- derstood, or wherein grace is expressly waived. These common-law S21 AVBEBTT v. BOOKER, 15 Grat (Va.) 169; Atkinson v. Manks, 1 Cow. (N. T.) 691; BILDBRBACK v. BURLINGAME, 27 111. 338; JOSSELTN v. LA- OIER, 10 Mod. 294, 317. 422 In the case of ORIDGE v. SHERBORNE, which was an action on a promissory note payable in Installments, it was held that the maker was enti- tled to the usual days of grace as each installment fell due. 11 Mees. & W. 374. And see PERKINS v. FRANKLIN BANK, 21 Pick. (Mass.) 483; Mechanics' Bank v. Merchants' Bank, 6 Mete. (Mass.) 13; "Wood v. Corl, 4 Mete. (Mass.) 203. Ab to notes payable in installments, see Coffin v. Loring, 5 Allen (Mass.) 153. Checks are not entitled to days of grace. ANDREW v. BLACHLY, 11 Ohio St. 89, Johns. Cas. Bills & N. 50. 228 HART V. SMITH, 15 Ala. 807; TRASK v. MARTIN, 1 B. D. Smith (N. Y.) 505; Sommerville v. Williams, 1 Stew. (Ala.) 484. Post, p. 344. 76 OF NEGOTIABLE BILLS AND NOTES. (Ch. 2 provisions are very generally modified by the statutes of various states. In some states, too, promissory notes are not entitled to grace. The doctrine is that they, not being negotiable in them- selves, but being made so by statute, are not placed upon the footing of bills of exchange, unless the statute expressly gives them all the privileges of negotiability. But where the statute does place notes on the footing of bills of exchange, then grace follows as a matter of course. For the same reason non-negotiable instruments, unless by statute placed on the footing of negotiable instruments, are not entitled to grace.^^* The number of days allowed as grace is generally three,^^" and is computed by adding them to the days, or months reckoned as calendar months, stipulated in the instrument.'"" The day of date is excluded from the calculation and the day of payment included."^ This computation by m'onths does not take into account the varying length of the month. The time reckoned in months may be longer or shorter, according as there are more or less days in the month. It also does not take into account the fact that the last day of grace happens upon a non-business day. In this last event, though in case of all non-commercial instruments the time which must ex- pire before suit can be brought against the debtor is extended to 22* Under the statute of 3 & 4 Anne, notes payable to a particular person, without "order," have been held entitled to grace. SMITH v. KENDALL, 6 Term E. 123; Duncan v. Institution, 10 Gill & J. (Md.) 299; Oox v. Reinhardt, 11 Tex. 591; Dubuys v. Farmer, 22 La. Ann. 478. Luce v. ShofC, 70 Ind. 152, contra. See Band. Com. Paper, § 1057. 22 6 Daniel, Neg. Inst. § 622. Demand of payment on negotiable bills and notes cannot be legally made until the third day of grace. GRIFFIN v. GOFF, 12 Johns. (N. Y.) 423, Johns. Cas. Bills & N. 49. In the case of Lenox v. Rob- erts it was held that demand should be made on the third day, and notice of the maimer's default be posted in time to go by the mail of the day after. Len- ox V. Roberts, 2 Wheat. 373; Banls; of Alexandria v. Swann, 9 Pet. 33. 22 6 Thomas v. Shoemalier, 6 Watts & S. 179; McMurchy v. Robinson, 10 Ohio, 496. 227 ROEHNBR V. INSURANCE CO., 63 N. Y. 160; Bellasis v. Hester, 1 Ld. Raym. 280; Campbell v. French, 6 Term R. 212; Hartford Bank v. Barry, 17 Mass. 24; RIPLEY v. GREENLEAF, 2 Vt. 129; AVERY v. STEWART, 2 Conn. 69, Johns. Cas. Bills & N. 57; Henry v. Jones, 8 Mass. 453; Pearson v. Stoddard, 9 Gray (Mass.) 199; Wentworth v. Clap, 11 Mass. 87. § 40) DAYS OF GRACE. 77 the next succeeding business day,"' yet with negotiable instruments, under the common law, grace is not extended in this way. With them the days of grace end on the next preceding business day, be- cause the debtor cannot compel the creditor to extend the indul- gence which a custom of doubtful advantage has already attached to the paper.''" This rule has been wisely modified by the statutes of many jurisdictions, where the day of payment has been declared to be the next succeeding secular or business day.''^" But, in the absence of any express statute, it is generally understood that the common-law rule would prevail. It is to be observed that by the Negotiable Instruments Law, as it has been enacted in most states, days of grace have been abolished. ''^^ 228 SALTER V. BURT, 20 Wend. 205. In this case a postdated check was payable on the day of Its date, without days of grace. As it fell due on Sun- day, the question arose as to whether payment should be made on the previous Saturday or the Monday following. The following is a portion of the court's opinion: "When there are no days of grace, and the time for payment or per- formance specified * • • falls on Sunday, the debtor may, I think, dis- charge his obligation on the following Monday." A bill or note falling due on Sunday, without days of grace, is payable on the following day. HIESH- FIELD V. BANK, 83 Tex. 452, 18 S. W. 743; Id., Johns. Gas. Bills & N. 53; BARRETT v. ALLEN, 10 Ohio, 426; AVERY v. STEWART, 2 Conn. 69. 22 8 BTISSARD V. LEVERING, 6 Wheat. 121; Reed v. Wilson, 41 N. J. Law, 29; KUNTZ v. TEMPLE, 48 Mo. 78; Parnum v. Fowle, 12 Mass. 89; Barker V. Parker, 6 Pick. (Mass.) 80; City Bank v. Cutter, 3 Pick. (Mass.) 414. 230 Eev. St. N. Y. pp. 2506, 2507. 231 Section 145. Cf. §§ 5, 14«. 78 ACCBFIANCE 01' BILLS OF EXCHANQB. (Ch. i CHAPTER m. ACCEPTANCE OF BIIrLS OF EXCHANGES. 41. Definition. 42-^5. Acceptance According to Tenor. 46. WHo may Accept. 47. Delivery. 48-49. Forms and Varieties of AcceptancSi 50. Implied Acceptance. 51-52. Acceptance on Separate Paper. 53. Parol Acceptance of a Bill. 54r-54a. Acceptance for Honor or Supra Protest 55. Time Allowed for Acceptance. DEFINITION. 41. An acceptance is an undertaking by tlie drawee ta pay the bill when due.* It will perhaps help the student to nnderstand the theory of ac- ceptance to present it to him as a phase of the elementary theoret- ical notion of a contract as constituted by an offer and acceptance. The acceptance is the assent to the proposition contained in the draft, which on its part is an offer, and which offer and assent, taken together, constitute a contract right or relation. In its prac- tical aspect as a contract, it obviates the transfer of cash by means of credit. In the illustration under § 10, C. owed A. A., we- may assume, says to B, "Give me cash for my debt, and treat the debt itself as cash." B agrees to this proposition, and A gives, as an evidence of the transfer of the debt to B, the ordinary draft, mak- ing him the payee. B then turns over this evidence of indebtedness, and the right of action along with it, to D, and D, on his part, to E. E now comes with the paper to 0. At this point the relation of the parties is as follows: The right A had to the debt of C is now held by E in the shape of a piece of commercial paper, which E is about to present to 0. A is liable to B for the £1,000 B paid A;. •See Neg. Inst. L. § 220. § 41) DEFINITION. 79 B, on his part, is liable to D for the £1,000 paid by D to B; and D to E. As yet O owes nothing to B, D, or E, and he only owes A for the debt he owed him in the first place. The paper in E's hands has been passing from hand to hand, and used for the payment of debts, and accepted as such upon the supposed solTency of each per- son who has held and indorsed it. now says, '^es, I will pay thiS £1,000"; and evidences his assent by writing on the bill "Accepted" over his own signature. At that moment he enters into a contract relation with the holder of the bill, and also with the various in- dorsers, that he will pay the bill.^ In other words, O promises B, D, and E, and each of them severally, that he will pay £1,000 to the holder. Thus, B, D, and E may look to either C or A for the £1,000 they have expended, but the condition implied is that B, D, and E, inasmuch as they have paid A for G's debt, will look to C to pay first, and, if does not pay, then they will look to A. This is the practical aspect of the theory of acceptance. It follows that the drawee, until acceptance, is a stranger to the bill.* In Swope v. Boss the drawee, who had not accepted a bill, discounted it before maturity, and the argument was that, in thus ■cashing it, he had paid it. But the court said it was neither ac- ceptance nor was it payment, unless such was the express intention of the parties. So that if a drawee receives and discounts a bill for the drawer, and then discounts it away, the drawer, and not the acceptor, is the person who must ultimately pay the bill.' But the drawee, upon acceptance, in the order of liability, becomes the prin- cipal debtor. He is precisely like the maker of a promissory note. This means that all parties may look to him to pay the instrument; 1 The acceptance is probably not complete, however, until delivery. Post, p. 88. As to an acceptance being irrevocable, see TRENT TILE CO. v. BANK, 54 N. J. Law, 33, 23 Atl. 423, Johns. Cas. Bills & N. 87. 2 SWOPE V. BOSS, 40 Pa. St. 186; Chapman v. White, 6 N. Y. 412; Bellamy V. Majoribanks, 8 Eng. Law & Eq. 523; Mandevllle v. Welch, 5 Wheat. 277; ATTENBOROUGH v. MACKENZIE, 36 Eng. Law & Eq. 562; DESHA v. STEWART, 6 Ala. 852; Tyler v. Gould, 48 N. Y. 682; Bullard v. Randall, 1 Gray (Mass.) 605; Tiernan v. Jackson, 5 Pet. 580. s Chapman v. White, 6 N. Y. 412; Winter v. Drury, 5 N. Y. 525; Duncan v. Berlin, 60 N. Y. 151. 80 ACCEPTANCE OF BILLS OF EXCHANGE. (Ch. 3 that no demand need be made of him; and that notice of dishonor to him is unnecessary, — all matters of moment in business affairs.* With these shifts of liability on the part of the drawe^ before and after acceptance, there is a corresponding change of liability on tke part of the drawer. If the drawee refuses to accept, after having promised so to do, the drawer may either sue him directly upon the promise for all loss occasioned," or he may fall back upon their original relation for his remedy. If it was debt, as in the case we put, he must sue on the indebtedness. If the drawer had deposited funds, he must demand them, and, on refusal, sue in tort or for conversion. In such a case, too, as we have already shown, all prior parties must look to the drawer to be repaid the moneys they have expended on taking the bill. The drawer remains, at all times, the principal debtor on the bill. On the other hand, upon acceptance the drawer is relieved from primary liability upon the bill, and stands as to the other par- ties to the instrument in a relation somewhat akin to a guarantor, or, as it is accurately put, in the position of first indorser. He is liable to pay the bill if the acceptor does not. A glance at the example will show the fairness of this. A received from B cash for a debt C promised to pay; B received cash from D; and D from E. If C fails in his promise, the cash received should be refunded in the order it was paid. This would leave the controversy as it ought to be between C and A. So far as classification is concerned, acceptances may be classified, according to their essential elements, and according to their tech- nical form. In their essential elements, acceptances are analogous to the acceptances of offers in ordinary contract law. As with the acceptance of the offer in the ordinary contract," the accept- * WALLACE V. McCONNELL, 13 Pet. 136, which contains cases on this point; Foden v. Sharp, 4 Johns. 183; Wolcott v. Van Santvoord, 17 Johns. 247; RUSSELL V. PHILLIPS, 14 Q. B. 891; Jarvis v. Wilson, 46 Conn. 90; COX v. BANK, 100 U. S. 712. , Ilsley v. Jones, 12 Gray (Mass.) 260; RIGGS v. LINDSAY, 7 Cranch, 500; Van Wart v. WooUey, 5 Dowl. & R. 374; ALLEN v. SUYDAM, 20 Wend. 321; Barney v. Newcomb, 9 Cush. (Mass.) 46. 6 Potts V. Whitehead, 23 N. J. Eq. 512; Eliason v. Henshaw, 4 Wheat. 225; Eads V. City of Carondelet, 42 Mo. 113; Corcoran v. White, 117 111. 118, 7 N. B. 525; Siebold v. Davis, 67 Iowa, 560, 25 N. W. 778; Northwestern Iron Co. 7. Meade, 21 Wis. 474; Clark, Cont. p. 36. § 41) DEFINITION. 81 ance of the bill of exchange must, in every respect, meet and cor- respond with the terms contained in the bill itself. It must nei- ther fall within or go beyond these terms, but must exactly meet them at all points.' In technical phrase, it must be according to the tenor of the bill. Again, as with the ordinary contract,^ an offer made to one person cannot be accepted by another. The drawee, or some person who, in view of law, is the same as the drawee, must be the acceptor." In their technical form, acceptances may be express or constructive, oral or written.^" Express accept- ances are those expressed in the words of the drawee; constructive, those implied from his acts. Written acceptances are assents writ- ten either upon the bill itself, or upon a piece of paper separate from the bill. The common, general principles governing the detail of form of a written acceptance are that it need not be dated; it may be accepted by the drawee in any name he chooses to adopt; ^^ it may be placed upon a bill before it has been signed by the drawer, or while otherwise incomplete, '^^ or after it is overdue, or after dis- nonor. With these general observations as to the nature and form of acceptances, let us turn and examine more carefully their specific details. 7 Seii post, § 42. "Price v. Easton, 4 Barn. & Adol. 433; Leake, Cont. 481; Tuttle v. Catlln, x D. Chip. 366; Rossman v. Townsend, 17 Wis. 95; Ross v. Milne, 12 Leigh, .204; Ellison v. Jaclison Water Co., 12 Gal. 542; Seaman v. Whitney, 24 Wend. 260; Fugure v. Mutual Soc. of St. Joseph, 46 Vt 362; Haskett v. Flint, 5 Blackf. 69; Clajk. Cont. p. 508. 9 See post, § 46. 10 STURGES V. BANK, 75 111. 595, Johns. Cas. Bills & N. 69; Dull v. Bricker, 76 Pa. St. 255; Averill v. Wood, 78 Mich. 342, 44 N. W. 381; Peterson v. Hub- bard, 28 Mich. 197; Grant v. Shaw, 16 Mass. 341; WELLS v. BRIGHAM, 6 Cush. (Mass.) 6. 11 Lindus v. Bradwell, 5 C. B. 591; ALABAMA COAL MIN. CO. v. BRAIN- ABD, 35 Ala. 476; NichoUs v. Diamond, 9 Exch. 154. 12 London & Southwestern Bank v. Wentworth, 5 Exch. Div. 96; HARVEY T. CANE, 34 Law T. (N. S.) 64. NEG.BILLS.— 6 82 ACCEPTANCE OF BILLS OF EXCHANGE. (Ch. 3 ACCEPTANCE ACCOHDING TO TEWOB. 42. The acceptance must be absolute and according to the tenor of the bill to bind all the parties to it.' 43. THE TENOR OF THE BILL— Is the request in the bill to pay the money at the time and place and in the manner mentioned in it. A change in the acceptance in any one of these respects renders the acceptance "quali- fied." 44. The payment of the bill by the acceptor may be made dependent oh a condition. It is then called "condi- tional" acceptance. 45. A qualified or a conditional acceptance is only valid— (a) As to all parties subsequent to the acceptance. (b) As to all prior parties 'who, upon due notice, assent. The general principle i^ that, for an instrument or ajQ act to he an acceptance, it must be accoicding to the tenor of the bill.^' The promise must be to pay all the feioney called for in the bill, for, if a bill be accepted for only paJt df that sum, it would result in splitting up the right of action on the' bill, part being chargeable to the acceptor, and part to the drawer;^ it would necessitate a par- tial protest for non-acceptance and for non-payment; and lastly, on payment, the drawee would be entitled to demand the possession of the bill, and his possession of it would be presumptive evidence of the payment of the whole bill, though he has in fact paid only part of it These, of course, are grave reasons against such an in- strument acting as a circulating medium. So, also, equally grave business objections exist against modifying the assent to the bill, 18 WEGERSLOFFB v. KEBNE, 1 Strange, 214; BOEHM v. GAKCIAS, 1 Camp. 425, note. This was on a bill, "payable In effective and not in vals reals." The drawee offered to accept payable in vals denaros, but this was re- fused. It was held that the plaintiff had a right to so refuse, and that the pro- posed acceptance was not a sufficient acceptance of a bill drawn as was this one. The acceptance should have been general. GIBSON v. SMITH, 75 Ga. 34; Shackelford v. Hooker, 54 Miss. T16. In PETIT v. BENSON, the acceptance §§ 42-45) ACCEPTANCE ACCORDING TO TENOR. 85 as to the time, place, or manner of its payment, or making its pay- ment conditional. For if, in the illustratioE under § 10, the bill was a 6-months bill, and B, D, and E were indorsers upon it, and the bill were payable in Jamaica, B, D, and E, as indorsers, might make all their calculations to pay the money at that time and place if C, the acceptor, did not. It would therefore be an injustice and hard- ship to B, D, and E if C were to accept the bill in three months, payable at London, England, because, if C did not pay at that 1;ime and place, the holder might sue B, D, and E, who had every right to expect that they would not be called upon to pay until after the expiration of 6 months, and then at Jamaica. Thus such a rule is necessary to protect the other parties to the bill who act as sureties or guarantors. And, taking all things into consideration, it is wiser to disallow than to allow them. But the student must not understand that such acceptances in themselves are bad. They promise to pay the bill. They create contract rights upon the consideration which would have rendered the acceptance, had it been given in the ordinary form, binding. They are contracts valid, but so inconsistent with the contracts of the in- dorsers acting as sureties or guarantors that they are impracticable and hence not allowed to be enforced. Where, however, they do not prejudice the rights of the indorsers, or in other words, where the modification of the tenor of the bill is such that it either casts no hardship upon the indorser, or where the indoraer or parties prior to the acceptor know of the modification and assent to it, there the reason for rejecting it as a form of acceptance ceases to exist, and so the rule is that a modified or qualified acceptance if imma- terial, or if known and assented to, is a valid acceptance.^* If it was, "I do accept this bill to be paid half in money and half in bills." It was held that a partial acceptance would charge the acceptor, but also that it might be refused and protested by the one to whom the bill was due, so as to charge the first drawer. Comb. 452. In an action upon a bill of exchange, it was held that, -where the day of payment was past at the time of acceptance, an agreement to pay secundum tenorem et efflectum billse was equivalent to a general acceptance, for the reason that it was then impossible to pay as is dl:- rected in the bill. JACKSON v. PIGOTT, 1 Ld. Raym. 364; Ford v. Angelrodt,. 37 Mo. 50, Johns. Cas. BiUs & N. 76; SWOPE v. KOSS, 40 Pa. St 186. See- Neg. Inst. L. § 220. 1* In SMITH V. ABBOTT the defendant accepted a bill to pay when the 84 ACCEPTANCE OP BILLS OF EXCHANGE. (Ch. 3 is a material alteration of the terms of the bill, and is not known and assented to, then it is invalid. If the modification is known and assented to, then the parties enter into a new contract. Parties subsequent to the modified acceptance of course enter into the con- tract on the basis of the acceptance as modified and are bound by it. Parties prior to it, who assent, waive their right to object an^d create as against themselves a right in the holder akin to an estop- pel. The materiality of an alteration in the tenor of the bill is well brought out in two cases, one of which was where the draft was addressed to Cobourg, and accepted payable at Port Hope, a town some miles distant; " in the other, where the bill was drawn pay- able in New York generally, and accepted payable "at Continental Bank, New York." * In this last case the fixing or designating a specific place in the city to which the bill was addressed was no hardship, — ^no material change; while compelling an indorser to be ready at some distant place was a hardship and a material change. There is a further distinction maintained by the authorities, which is perhaps rather of form than of substance. Where the accep- tance varies the offer contained in the bill as to the time, place, or mode of payment, it is a qualified acceptance.^' Where, however, a variation is introduced into the acceptance of the bill in the na- goods for which it was drawn were sold. As the plaintiff submitted, this was held good, though the plaintiff might have refused such acceptance, and have protested the bill. 2 Strange, 1152. In WALKER v. ATWOOD a bill without a day of payment was accepted by the drawee to be paid on a certain date after it was presented. Although bills without such date when payable are due at sight, in an action against the acceptor the acceptance was held good. Yet by the acquiescence of the holder in the jjualified acceptance prior holders would have been discharged. 11 Mod. 190. Shackelford v. Hooker, 54 Miss. 716, Johns. Gas. Bills & N. 78. "An acceptance is. either general or qualified. A general acceptance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as drawn." Neg. Inst. L. § 227. IS NIAGARA DIST. BANK v. MANUFACTURING CO., 31 Barb. 403. But see Brown v. Jones, 125 Ind. 375, 25 N. E. 375. * TROY CITY BANK v. LAUMAN, 19 N. Y. 477. "An acceptance to pay at a particular place is a general acceptance, unless it expressly states that the bill is to be paid there only, and not elsewhere." Neg. Inst. L. § 228. "An ac- ceptance is qualified which is * * * local; that is to say, an acceptance to pay only at a particular place," etc. Id. § 229. 18 Byles, Bills, 316; Story, Bills, § 204; Daniel, Neg. Inst. § 515. §§ 42-45) ACCEPTANCE ACCORDING TO TENOR. 85 ture of a condition, the acceptance is called "conditional." f In the last class of cases the plaintiff as a part of his case must show that the condition has been performed before the liability of the acceptor can be deemed to have accrued.'-' A common example of this is an acceptance to pay "when in funds," ^' which means that when the acceptor has cash which the drawer has a right to demand and receive he will then pay the bill.^" This manner of acceptance, as well as the qualified one, creates a new contract, and is governed by the rules and reasons we have just laid down. The holder may elect to reject it altogether, and at once give notice either of non- acceptance or of protest, or he may, if willing to accept the offer, give notice to prior parties, and they in turn may assent to it, and thus become bound.* This is, however, not always the rule with re- gard to the drawer as a prior party. If, as is sometimes the case, the drawer makes a draft upon a drawee without having a right to do so, there is no more reason why the courts should release him from his contract than that they should seek to protect him by giving him notice of dishonor in case of a refusal to accept or to pay. In both cases the holder is injured by the act of the drawer, and in both cases the drawer is held bound. ^^ t Neg. Inst. L. § 229, classes qualified acceptances as (1) conditional; (2) par- tial; (3) local; (4) qualified as to time; and (5) wbere the acceptance is of some, but not all, of the drawees. 17 Gammon v. SchmoU, 5 Taunt. 344; Nagle v. Homer, 8 Cal. 358; Read v. Wilkinson, 2 Wash. C. C. 514, Fed. Cas. No. 11,611; Gooding v. Underwood, 89 Mich. 187, 50 N. W. 818; Ferguson v. Davis, 65 Mich. 677, 32 N. W. 892; STOREE V. LOGAN, 9 Mass. 55. 18 SMITH V. ABBOTT, supra; Marshall v. Clary, 44 Ga. 513. 19WINTERMUTB v. POST, 24 N. J. Law, 420; Campbell v. Pettengill, 7 Greenl. (Me.) 126; Owen v. Lavine, 14 Ark. 389. * "When the drawer or an indorser receives notice of a qualified acceptance, he must, within a reasonable time, express his dissent to the holder, or he will be deemed to have assented thereto." Neg. Inst. L. § 230. 20 Daniel, Neg. Inst. § 511. S6 ACCEPTANCE OF BILLS OF EXCHANGE. (Ch. 3 "WHO MAT ACCEPT. 46. The only person permitted by the law merchant to "be an acceptor is the person to whom the bill is addressed. Another person is liable only upon a collateral undertak- ing. BXCEPTION" — An acceptor for honor. The arbitrary custom of merchants is said by the courts to be the reason of this rule.f Though it is not the language of the courts, yet it so coincides with the fundamental theory of contracts that we add as an additional reason that no person other than the drawee can be acceptor, because such a person would be in a measure a stranger to the contract.*^ He is not, as appears from the face of the instrument, indebted to, nor has he funds of, the drawer. It is true, his intention may have been to signify to the parties to the l)ill that he was willing to pay and would pay the instrument. But "he was not the person to whom the proposition or on whom the order was made. He was not a party to the contract. If the courts were to treat him as an acceptor, they would make a contract for the drawer with a party with whom, as far as it can be gathered from the bill, the drawer had no intention of contracting. This, though somewhat vaguely stated, seems to be the underlying prin- ciple in Walker v. Bank of State of New York.''' In that case the bill was addressed to Mr. E. C. Hamilton, of New York, and was "accepted payable at American Ex. Bank. [Signed] Empire Mills. By E. 0. Hamilton, Treas." The question was wbether this was an acceptance, and the court said this was an acceptance of the Empire Mills, not a party to the contract. This point is brought out more clearly in some of the English cases. In Jackson v. Hudson" a bill was addressed to Mr. L Irving, and accepted, "L Irving. Jo- seph Hudson." This was a case for sale of goods to Irving. Hud- t See Neg. Inst. L. § 220. 21 Heenan v. Nash, 8 Minn. 407 (Gil. 363), Johns. Cas. BiUs & N. 65; RA .BORG V. PEYTON, 2 Wheat. 385. 22 WALKER V. BANK, 13 Barb. 636; Id., 9 N. Y. 582. J! 8 JACKSON V. HUDSON, 2 Camp. 447. § 46) WHO MAY ACCEPT. 87 son accepted, by way of making the acceptance doubly sure. But Lord Ellenborough. said Hudson's undertaking was a collateral one. Yet, whatever its effect, it was not an acceptance.^* This rule is subject to exceptions, to some of which we have before called atten- tion. We have seen that if it were clear to whom the bill is meant to be addressed, and the acceptance is made by such a person, then the acceptance is sufficient. This is based upon the case of Gray v. Milner,"' where an instrument was addressed "Payable at No. 1 Wilmot St.," and the words "Accepted, Charles Milner," were treat- ed as a proper acceptance, because such an address could only mean the person residing there. This rule has been followed in this country, and it is now probably the law. In addition to this ex- ception, there are others. A draft may be accepted by some drawee other than the one named, provided in the draft there was a mis- nomer as to the drawee and it was accepted by the person to whom it was intended to be addressed.^' The acceptor for honor — a branch of this subject to be discussed later on — ^is also a modifica- tion of this rule. Besides these instances, an agent may accept for and in the name of the principal,^* but not in his own name, because that is his individual acceptance, and not the acceptance of the drawee. ''^ If the bill be addressed to the agent, he cannot accept 2* DAVIS V. CLAEKE, 6 Q. B. 16. In this case the maker drew a bill of exchange payable to himself or order, and addressed also to himself, and a third party wrote his name under the word "Accepted." It was held that such third party could not be sued as an acceptor, on the ground that he was not the Receptor of a bill of exchange directed to him. See, also, MAY v. KELLY, 27 Ala. 497; Steele v. McKinlay, 43 Law T. (N. S.) 358; WALTON v. WIL- LIAMS, 44 Ala. 347. 26 GRAY V. MILNER, 8 Taunt. 739. See criticism of this case, ante, p. 58. 2' Hascall v. Life Ass'n, 5 Hun, 151. 2 8 Thom. Bills, 211. 2» Daniel, Neg. Inst. § 487. A bill was directed to an unincorporated com- pany, and was accepted for it by one of its members, who signed as manager. In an action on this It was claimed that such acceptance did not bind the party accepting, because he had no authority. This, however, was held not to affect his personal liability, as it was shown that he was one of those associated un- der the name of the company to whom the bill was directed. OWEN v. VAN USTER, 20 Law J. C. P. 61. To the same purpose, see NichoUs v. Diamond, 9 Exch. 154. 88 ACCEPTANCE OF BILLS OF EXCHANGE. (Cll. 3 it in behalf of his principal.^" An acceptance in blank, where the bill is incomplete, and is afterwards to be filled in, is yalid.'^ DELIVERY. 47. An acceptance is probably complete only upon de- livery. It is maintained by Professor Ames that an acceptance is com- plete without delivery because, as he says, the delivery of a bill or note is necessary only for the purpose of creating or transferring title; ^^ and an acceptance has no effect upon the title to the bill, and is, therefore, complete the moment it is written upon the bill, animo contrahendi. In support of this position he cites WILDE v. SHEEIDAN.'^ In this case the question was whether the judge of the Norfolk county court, whose jurisdiction was local and depend- ent upon the accrual of the cause of action within the county, had jurisdiction over a case where the defendant signed an acceptance in London, England, and sent it by mail to Norwich, Norfolk county. The court held that the contract was made in London, and not in Norwich, and therefore that the whole cause of action did not ac- crue within the county, and hence that the court had not jurisdic- tion. Lord Coleridge, referring to the argument that an acceptance was like an indorsement, distinguished the acceptance from an in- so Walker v. Bank, 9 N. Y. 582. 31 LESLIE V. HASTINGS, 1 Moody & R. 119. Defendant gave A a stamp with his acceptance in blank, authorizing A to draw for a certain sura at a specified date, and A drew the bill on the stamp accordingly. Held, in an ac- tion by the indorsee against the acceptor, that the acceptance was valid. HOPPS V. SAVAGE, 69 Md. 513, 16 Atl. 133. "A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete." Neg. Inst. L. § 226. 3 2 2 Ames, Bills & N. p. 791. 33 21 Law J. Q. B. 260. See, also, Eoff v. MiUer, 19 Law J. C. P. 278; THORNTON v. DICK, 4 Esp. 270. In BENTINCK v. DOERIEN, 6 East, 199, a bill on the defendants was left by the plaintiff, who was Indorsee. The de- fendants accepted, but on the next day canceled their acceptance, whereupon plaintiff protested for nonacceptance. It was held that, while such acceptancf might be valid as to a third party, the plaintiff had, by protesting, precluded |iiuiself from claiming an acceptance. §§ 48-43) FORMS AND VARIETIES OF ACCEPTAXCE. 89 dorsement, and said: "One purpose of an indorsement is to pass the property in the bill, and that purpose is not effected until actual or constructive delivery. But the acceptor has no property in the bill before or after acceptance. He must be supposed to receive the drawer's paper and on it write his promise without in any way altering the property in the bill. He may, indeed, before any com- munication to the drawer of the act done, revoke it, but his promise, unless so revoked, is complete, and takes effect from the time when it is made." The reasoning of this case cannot be reconciled with the earlier case of COX v. TROY,^* where the indorsees of a bill left it with the drawee for acceptance, and he after writing an accept- ance thereon redelivered it with the acceptance crossed out, and it was held that he was not liable as acceptor, on the ground that an acceptor was at liberty to revoke an acceptance before redelivery of the bill. The reason advanced in support of this view was the prac- tical one that no person could be prejudiced by permitting the drawee to withdraw his acceptance before redelivery, and the law is gen- erally laid down in accordance with COX v. TROY.^° FORMS AND VARIETIES OP ACCEPTANCE. 48. An acceptance, if in ■writing, is constituted by any words from \p-Mch an intention to accept can be gathered. 49. An acceptance, if verbal, is constituted by any words which, evidence such intention clearly and unequivocally, if they be addressed to the drawer or holder, and he w^aive his right to a written acceptance. An acceptance may also be implied from conduct evidencing such inten- tion. The foregoing principal text shows theform and vsin'eMes of ac- ceptances. They are acceptances expressed in writtpn or spoken words, as contrasted with each other and also with ac(!iifptances 34 5 Barn. & Aid. 474. S6 DUN A VAN V. FLYNN, 118 Mass. 537; Freund v. Bank, 3 Hun (N. Y.) 689; Band. Com. Paper, § 637; Daniel, Neg. Inst. § 490. Under Neg. Inst. L. § 2, however, acceptance is complete without delivery, provided it be com- municated. 90 ACCEPTANCE OF BILLS OF EXCHANGE. (Ch. 3 implied from merely the conduct of the drawee. Ad other variety of the general class is caused by its being written on a separate piece of paper; and a third, by its being issued as a written, spoken, and implied acceptance before or after the issuing of the bill. It is our purpose to first show the underlying theory of an acceptance, and then to show the forms and general principles required for an acceptance by the law merchant. As has been said, the acceptance is the assent of the drawee to the request of the drawer. The question, then, is, what, under the law merchant, will be deemed an evidence of such assent.^" There are three general classes based upon the divisions we have given above: Acceptances in writing, acceptances by parol, and acceptances implied from conduct. If in writing, the courts, according to Judge Cowen,'' go to the length of saying that any form of words which do not in themselves negative the request of the bill shall be treated as a valid acceptance of it.'* Under the common law, neither the word "^^ccepted" nor the signature of the acceptor is necessary. The unsigned words 88 In re Armstrong, 41 Fed. 381; Van Staphorst v. Pearce, 4 Mass. 258; Peck V. Cochran, 7 Pick. (Mass.) 34. 87 SPEAE V. PRATT, 2 Hill (N. Y.) 582. Referring to the laxity of the courts in construing acceptances, Willes, J., said, in SPROAT v. MATTHEWS, 1 Term R. 185: "The court has not of late been very nice with regard to what shall be construed to be an acceptance; for though formerly it was held neces- sary that an acceptance should be in writing, yet of late years a parol accept- ance has been deemed sufficient; and, indeed, at present almost anything Amounts to an acceptance." 88 Where a bill was drawn on the defendant, and he wrote across It: "Ac- cepted. Payable at Messrs. Stevens & Co.,"— but failed to sign, it was held to amount to an acceptance. The court, in summing up, said that it was of opinion that the writing might be valid in law, though unsigned, but that whether it was Intended so to operate in its unfinished condition was a ques- tion for the jury. DUFAUR v. OXENDEN, 1 Moody & R. 90. In an action of assumpsit by the indorsee against the acceptor, it was proved that the de- fendant had given a stamp, with his acceptance in blank to the drawer, and authorized him to draw at a certain date for a specific amount. It was held that there was an actual acceptance in writing, with express authority to eu in the bill in a particular manner. LESLIE v. HASTINGS, 1 Moody & B. 119. §§ 48-49) FORMS AND VARIETIES OF ACCEPTANCE. 91 "Seen," " "Presented," *" "Honored," " or merely the name of the drawee,** or "I will pay this "bill," *" are suflScient acceptances, and evidence the fact merely that the drawee has seen the bill, and does not dissent from it In many jurisdictions written and signed ac- ceptances are required,* meaning, according to the interpretation of numerous cases, that an acceptance is sufficient if it be the name of the acceptor alone, which complies with the regulation that the acceptance shall be in writing and be signed.** And every holder of a bill, presenting the same for acceptance, may require the ac- ceptance to be written on the bill. A refusal to comply shall be deemed a refusal to accept, and the bill may be protested. In jurisdictions where acceptances are not required to be in writ- 38 Bamet v. Smith, 10 Post. (N. H.) 256. *o Pars. Bills & N. 282. " Anson, Cont. 401. 42 SPEAR V. PEATT, 2 HIU (N. T.) 582. Chit. Bills, 538, 539; Daniel, Neg. Inst. § 1203. * As to the American statutes, see Rand. Com. Paper, § 1669. 160 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 When the drawer issues a bill to the world, he undertakes two things. One is that the situation, nature, or character of the drawee is such that the bill can be accepted; and the other is that the drawee, upon presentment, will accept the bill. The legal interpretation of the words on the face of the bill indicating the place of presentment to the drawee, as, "To John Smith, at Baring Bros.," is that the drawer contracts that the drawee may be found at that place, and the bill presented to him there.*^ Thus, in case of a bill *^ drawn on Paris, where the French convention had passed a decree prohibit- ing the payment of bills drawn in any country at war with France, the court so applied the rule that ultimately the loss should not fall upon the payee or indorser, but upon the drawer who issued the bill, who, it is to be inferred, was deemed to warrant that the situation of affairs would be such that the bill could be presented for accept- ance. If this turned out not to be the case, then the drawer must bear the loss. This loss to be borne by him consists of all loss incur- red, such as re-exchange, notarial expenses, and other damage *' nec- essarily incidental to the failure to obtain the acceptance, because , the party taking the bill was obliged to make these expenditures to collect the bill, and if the drawer's contract was broken, and such collection failed, the drawer must reimburse such party.** The holder 41 Edw. Neg. Inst. §§, 530-534; Wing v. Terry, 5 Hill (N. Y.) 160. 42 MELLISH V. SIMEON, 2 H. Bl. 378. 43 AURIOL V. THOMAS, 2 Term R. 52. In this case a bill of exchange, 2,800 star pagodas, payable to defendant or order, and directed to G. M., Madras, was indorsed to plaintiffs, wbo discounted it at the rate of exchange, 6s. 6d. per pagoda. On sending the bill to Madras it was returned protested for nonacceptance and nonpayment. The plaintiffs recovered 10s. per pagoda and £5 per cent, after end of 30 days' notice to defendatlt. Such reccyery was held not usurious, as it was proved to be the usual custom in case of such bills, as such recovery included charges of exchange and other Incidental expenses as well as legal interest. In GANTT v. MACKENZIE, a bill of exchange was presented for acceptance and refused, April 17, 1809, and was presented for payment on the 19th of June of the same year. It was decided that the holder was entitled to £10 per cent, as damages, and interest was to be allowed from the time of presentation for payment. 3 Camp. 51. In Hel- lish V. Simeon, it was held that where the holder has been guilty of no de- fault, the drawer is answerable for the amount of the bill, and also for the re-exchange which is a consequence of the bill not being paid. 2 H. Bl. 378. 4 4 Byles, Bills, 402; Daniel, Neg. Inst. § 1445; and Weldon v. Buck, 1 Johns. 444. § 77) UNDERTAKING OF DRAWER. 161 of a bill, whom it reaches, in the course of its circulation, may present the bill to the drawee; and, if he refuses to accept, although the bill is not due, the holder may at once turn and hold the drawer, in- dorsers, and all parties upon the bill prior to himself. The reason of this is to guaranty the circulation of bills, by preventing the drawer from withdrawing funds from the hands of the drawee before the bill is presented, and also to assure the holder that, if anything is wrong between the drawer and drawee, and the drawee reifuses to accept, he may at once turn for reimbursement to the parties through whom the bill has been circulated, and who treated it as the equiva- lent of cash, and were paid money, each in turn, for it.*" The further effect of this rule will be considered in the chapter on "Presentment." The courts speak of this legal relation of the drawer as a stipula- tion or part of the contract rather than as an estoppel. This is be- cause the reason of the rule is somewhat different from that which is the basis of the estoppels of the acceptor. It is argued that the main purpose of the contract between the drawer, on the one hand, and the payee and person to whom he transfers his rights, on the other, is to remit money. For this purpose the payee and subse- quent holders pay valuable consideration. To effect this purpose, the drawer, on his part, agrees that the money shall be paid at the time, place, and by the person nominated in the bill. Of the very essence of this agreement, therefore, is the fact that the drawee, who may be a stranger to the payee or subsequent holder, should be found in the place where he is described to be.*° Otherwise, it would be the duty of the holder to search the world over for the person to pay him in turn the money he had paid the drawer. It is also of its essen- tial nature that the drawee shall have funds in his hand to warrant his accepting, or that he accepts from some other consideration, im- material to the payee, perhaps, but good as between the drawer and 45 BALLING ALLS v. GLOSTER, 3 Bast, 481; Mason v. Franklin, 3 Johns. 202; Welrton v. Buck, 4 Johns. 144; Miller v. Hackley, 5 Johns. 375; BANK OF ROCHESTER v. GRAY, 2 Hill, 227. 46 De Wolf V. Murray, 2 Sandf. 166; HINB v. ALLELY, 4 Bam. & Adol. 624. In this case an accepted bill was presented at the place of payment specified in the instrument, but the house was closed. It was objected that for this reason there had been no presentment, but it was held that the pre- sentment as described was good. Buxton v. Jones, 1 Man. & G. 83; Pierce v. Struthers, 27 Pa. St. 249. NEG.BILLS.— 11 162 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 drawee. In other words, as between the drawer and payee, the drawee, though he is designated as the person to make the payment, is a mere agent of the drawer; and the latter, therefore, since he undertakes for his agent's acts, "undertakes that the acceptance be made at all events." " WARRANTIES OP INDORSER. 78. Every indorser who indorses "without qualification warrants to his indorsee and to all subsequent holders: (a) That the bill or note is, in every respect and as to all prior parties, genuine, and neither forged, fictitious, nor altered. (b) That the bill or note is a valid and subsisting ob- ligation, and that the contract obligations of all prior parties are valid. (c) That the prior parties w^ere competent to bind themselves, whether as drawer, acceptor, maker, or indorser. (d) That he, as indorser, has good title to the bill or note, and also a right to transfer it.** As we have seen, the contract of the indorser, while it embodies the terms of the instrument indorsed, is nevertheless a distinct con- tract. The contract of the indorser includes a promise of indemnity in case of the dishonor of the instrument, and it also includes certain so-called "warranties." It must be observed, however, that these war- ranties are implied, not from the undertaking of the indorser to pay in case of dishonor, but as incidents to the transfer or sale of the bill or note. A warranty may be defined as an agreement with reference to the subject of the contract, but collateral to its main purpose. Warran- ties may be express or implied, but it is only implied warranties that are here in question. In every contract of sale of personal property, the seller impliedly warrants his right to sell the goods unless the circumstances of the sale or agreement to sell are such as to show that *7 Hlbernla Nat. Bank v. Lacombe, 84 N. Y. 367. *8 Cf. Neg. Inst. L. § 116. § 78) WARRANTIES OP INDORSER. 163 he is transferring, not the absolute property, but only such property or interest as he may have, in the thing sold. Hence from the in- dorser's transfer or sale of the instrument indorsed it follows that he impliedly warrants that he has lawful title to it and a right to transfer it. As a rule the implied warranties of the seller of personal property do not extend beyond this, and he does not warrant the qual- ity of the thing sold. It is true that there are certain exceptions, which arise in particular cases from the nature of the agreement and of the thing sold, where the law does imply a warranty of certain quali- ties, but these exceptions are mainly confined to contracts for the sale of unascertained goods, — ^that is, of goods which the seller is to select or manufacture and appropriate to the contract; and therefore these exceptions cannot apply to the sale of a specific bill or note, which the buyer has an opportunity to inspect. In case of the sale of spe- cific goods, the rule of caveat emptor applies, and no warranty, strict- ly speaking, except of title, is implied; subject, perhaps, to a single exception, namely, where the seller is also the manufacturer or grower, it has in some cases been held that a warranty is implied that ttiey are free from latent defects arising^ from the process of manufacture or growth.*" It is obvious, of course, that this exception cannot apply to the transfer of bills and notes. Upon the strict analogy of the sale of other personal property it would follow, therefore, that the im- plied "warranty," in the proper sense of the term, of the indorser would be confined to warranty of title. There is, however, another principle governing the sale of personal property which is material in this connection. Where goods, even if they be specific and the buyer has an opportunity to inspect, are sold by description, there is an implied "condition" that the goods shall correspond with the description. This condition is sometimes improperly called, and gen- erally so called in the United States, a "warranty." But whether this undertaking be called a "condition" or a ^'warranty," it is the law that if the article sold fails to conform to the description the buyer has a right of action against the seller for its breach."' Applying this principle to the sale of bills and notes, it may fairly be said that *« As to implied warranty of quality, see Benj. Sales, § 644 et seq.; Tiff. Sales, 107 et seq. 50 As to sale by description, see Benjamin, Sales, §§ 600, 645; Tiff. Sales, 155, 171. 164 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 if the instrument for any reason is invalid in its inception it is not what it purports to be, a bill or note, but a mere worthless piece of :paper; and in such case the purchaser has a right of action against cthe seller for breach of contract, based on the failure of the thing sold to conform to its description."^ It seems that this principle is the foundation of the so-called warranties of the indorser which are not to be explained by the implied warranty of title. Therefore, when it turns out that a note or bill is forged or altered or void for usury, or that the parties were infants, or that the bill had been stolen, the 'iank which has taken it, or the party who has accepted it in payment 'Hot goods, may turn upon the indorser who transferred it to him, and Tsue him upon his indorsement. And, when the indorser sets up any of these facts by way of defense, the holder may answer, "I am suing jou upon a separate contract in which you warranted these things rto me," and the courts conclude the indorser from such a defense." Thus, in warranting the genuineness of the instrument, the indorser agrees that if it cannot be enforced against the drawer, acceptor, or ■anaker, whose names appear upon it, because these names are forged, these defenses will not avail him; °' and this rule also applies in case of prior indorsements.'* In warranting its validity he agrees that if the paper cannot be enforced against the acceptor or maker because «t some illegality in its inception, for example because it was given for a gaming debt,"" or void for usury,"* or given for other illegal 01 Meyer v. Richards, 163 U. S. 385, 16 Sup. Ct. 1148; Daniel, Neg. Inst. § •73Sa. 52 The liability for breach of warranty accrues at the time of indorsement, and the statute of limitation begins to run at that date. BLETHEN v. LOV- JERING, 58 Me. 437. 53 COGGILL v. BANK, 1 N. Y. 113; Mosher v. Carpenter, 13 Hun (N. Y.) *i04; TURNBTJLL v. BOWYEE, 40 N. Y. 456; Meacher v. Fort, 3 Hill (S. C.) 227, and Riley, 248; HANNITM v. RICHARDSON, 48 Vt. 508; Condon v. TPearce, 43 Md. 83; York Co. M. F. Ins. Co. v. Brooks, 51 Me. 506; Chase v. Hathorn, 61 Me. 505; SELSER v. BROCK, 3 Ohio St. 302. w TURNER V. KELLER, 60 N. Y. 66; OGDEN v. SAUNDERS, 12 Wheat. 313; FISH v. BANK, 42 Mich. 204, 3 N. W. 849; WILLIAMS v. INSTITU- TION, 57 Miss. 633. 05 BOW^YER V. BAMPTON, 2 Strange, 1155, 7 Mod. 334; Edwards v. Dick, 4 Barn. c& Aid. 212. 68 Morford v. Davis, 28 N. Y. 481; Ingalls v. Lee, 9 Barb. 647; McKMGHT V. WHEELER, 6 Hill, 492; Ord, Usury, 109. §78) WARRANTIES OF INDORSEE. 1G5- considerations," these defenses will not avail him. In warranting, the competency of the parties he agrees if the paper cannot be en- forced against the original parties because they were incapable of con- tracting because they were married women,^* or because they were a copartnership,''" or as an agent,'" or as a corporation,"^ that these defenses will not avail him. And, the reason being the same in case of genuineness and competency, it is probable that this rule applies also to prior indorsers."^ In warranting title and right to transfer- he agrees that, if the instrument cannot be enforced against the orig- inal parties because it was lost by them or stolen from them, these- defenses will not avail him, because he held himself out as having a. good title, and therefore a right to transfer. "^ A thoroughly consistent theory, it. might be urged, would require- that if the principal contract, set forth on the face of the instrument, . is void ab initio, all the subsidiary contracts of indorsement depend- ing upon it would also be of no legal effect, because they could never - give life to a contract which had no existence. But even granting this • to be so, yet legal theory is overruled by common sense. Besides, it: is not always necessary that the principal contract to which a col- lateral contract of guaranty is added should be enforced in order thalr the contract of guaranty may avail.'* A guarantor can sometimes be held, although no suit whatever can be maintained on the original debt. For it is sometimes the very essence of a guaranty that it is given because the principal debt cannot be enforced, as in cases where " Graham v. Maguire, 39 Ga. 531; Succession of Well, 24 La. Ann. 139. 68 In the case of ERWIN v. DOWNS, it -vs^as held that the indorsement of ai promissory note imports a contract that the maliers -were competent to con- tract, and that one who became the holder of such a note for a valuable con- sideration, before maturity, is not deprived of the right to rely upon th&- contract of the Indorser, even though such holder have linowledge that the makers were Incompetent, as being married women. 15 N. Y. 575; HALT v. LANE, 2 Atlj. 181; Kenworthy v. Sawyer, 125 Mass. 28; Robertson v. Allen,. 3 Baxt. 233. 59 Dalrymple v. Hillenbrand, 62 N. Y. 5. 60 Burrill v. Smith, 7 Pick. 291. 01 Remsen v. Graves, 41 N. Y. 471; Zalbriskle v. Cleveland, C. & C. R. C(v 23 How. (TJ. S.) 399; Glldden v. Chamberlin, 167 Mass. 486, 46 N. B. 103. 62 Daniel, Neg. Inst. § 676; Lennon v. Grauer, 159 N. Y. 433, 54 N. E. 11. 03 Edw. Neg. Inst. § 407; Daniel, Neg. Inst. § 677; Rand. Com. Paper, § 755^ 64 McLaughlin v. McGovem, 34 Barb. 208. 166 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 the guarantor undertakes to be responsible for the goods to be sup- plied to a married woman or an infant. Neither does the fact that the guarantor cannot. call upon the person for whom he has given his guaranty constitute any defense. The party to whom the guaranty is given has nothing to do with their mutual relationa The indorser guaranties to such party the payment of the instrument, and, if it is not paid, he immediately becomes liable upon this guaranty." Whether also he knew of any defects in the instrument is immaterial. If the indorser knew of defects, he is undoubtedly liable under the general principles of warranty already given. If the indorser did not know of defects, he is none the less liable in damages upon the construction of the general contract of indemnity he made when he indorsed the instrument. The existence of this contract as a distinct stipulation becomes more apparent when we consider the practical application of these rules by the courts. Where the bill or note is forged or altered, for example, it is void, as we have said, because in fact no such legal obligation was ever created. Money, therefore, paid upon the in- dorsement of such a bill or note, is governed by the same principle that governs other money paid under a mistake of fact. In other cases the equitable action for money had and received will lie against one who has received money which in conscience does not belong to him.* And so, when the maker or acceptor or a prior indorser has refused to pay a note or bill upon the ground that it is void because of forgery, or alteration, or on the ground of usury, gaming consid- eration, or the like, the holder, relying upon the so-called "warranty" of the indorser, may hold him for the money paid to him for the instru- ment 6 5 Remsen v. Graves, 41 N. Y. 471. In the case of LAWSON v. FARMERS' BANK it was held by the court that the liability of the indorser -was strictly conditional and dependent upon due demand upon the maker or acceptor and also due and legal notice of nonpayment. The purpose of such demand is to enable the indorser to look to his own interests and to secure his own in- demnity. Demand and notice being conditions precedent to the indorser's liability, the holder must make proof of them before he can recover. LAW- SON V. BANK, 1 Ohio St. 206. * Kelly V. Solarl, 9 Mees. & W. 54. § 79) WARRANTIES OF INDORSEE WITHOUT RECOURSE. 167 WAERANTIES OP INDORSEE WITHOUT RECOURSE— OP TRANSFERROR BY DELIVERY. 79. Every person who negotiates a bill or note by in- dorsement \irLthout recourse or by delivery -warrants: (a) That the instrument is, in every respect and as to all prior parties, genuine, and neither forged, fictitious, nor altered. (b) That he has good title to the instrument, and also a right to transfer it. (c) That he has no know^ledge of any fact w^hich w^ould impair the validity of the instrument or render it valueless. (d) That all prior parties were competent to bind themselves, although the authorities are not unanimous upon this point. (e) That the instrument is a valid and subsisting ob- ligation, although the authorities are not unani- mous upon this point, and in states which have adopted the Negotiable Instruments Law this w^arranty is not implied. But when the negotiation is by delivery only, the w^ar- ranty extends in favor of no holder other than the im- mediate transferee." The indorser without recourse and the transferror of a bill or note by delivery stand upon much the same footing. So far as an indorse- ment and transfer is a promise of indemnity, neither the transferror without indorsement nor the indorser without recourse promises to pay the instrument. In fact, the object of an iadorsement without recourse is to relieve such an indorser from his obligation as a prom- isor of indemnity. He exempts himself by these words from his »8 The last paragraph follows the language of Neg. Inst. L. § 115, and im- plies that the warranty of the indorser without recourse extends to subsequent holders. Whether It so extends irrespective of statute, quaere. It seems that the warranty of the transferror by delivery does not Chalm. Bills & N. art 226. But see 2 Ames, Cas. Bills & N. 840, 882. 168 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Cll. promise to pay if the parties antecedent to him do not. But because the transfer is in effect a sale, the transferror without recourse, like the seller of a chattel, warrants his title "' to the instrument and its genuineness/* And it would seem upon principle, for the reasons already set forth, '° that all the warranties which are implied in the case of unqualified indorsements should apply to the indorser without recourse. Accordingly he warrants the competency of prior parties,'" and the validity of the instrument,'^ although upon the latter point there is conflict of authority, as will be pointed out in the next para- graph. When the transfer is of paper payable lo bearer and is made by mere delivery, since the warranties in both cases arise as incidents to the sale, there seems to be no reason why the same warranties should not be implied as those which arise upon an ordinary transfer by indorsement. The authorities are agreed that in such case the transferror warrants his title "* and the genuineness of the instru- ment,'' and, it seems, also warrants at least that he has no knowl- edge of any fact which would impair the validity of the instrument or render it valueless.'* And it has frequently been held that he warrants the competency of the prior parties,'" and also the validity of the instrument." On the other hand, it has been held in a lead- ing case in New York," involving a note void for usury, that the 8T Daniel, Neg. Inst. § 670. 08 DUMONT V. WILLIAMSON, 18 Ohio St. 515; Palmer v. Courtney, 32 Neb. 781, 49 N. E. 754. 68 Ante, p. 163. 7 LOBDELL v. BAKER, 1 Mete. (Mass.) 193, 3 Mete. (Alass.) 469 (transfer by delivery). Ti HANNUM V. RICHARDSON, 48 Vt. 508; CHALLISS v. McCRUM, 22 Kan. 157. 7 2 MURRAY V. JUDAH, 6 Cow. (N. Y.) 483; HERRICK v. WHITNEY, 15 Johns. (N. Y.) 240; Shaver v. Ehle, 16 Johns. (N. Y.) 201. 7 3 FRANK V. LANIER, 91 N. Y. 112; BELL v. DAGG, 60 N. Y. 528. 7 4 Littauer v. Goldman, 72 N. Y. 506. See, also, Edw. Bills & N. § 355; Mandeville v. Newton, 119 N. Y. 13, 23 N. B. 920; MERIDIAN NAT. BANK V. GALLAUDET, 13 N. Y. St. Rep. 269. 7 5 LOBDELL V. BAKER, supra; Baldwin v. Van Deusen, 37 N. Y. 487. 76 HANNUM V. RICHARDSON, 48 Vt. 508; CHALLISS v. McORUM, 22 Kan. 157; Giffert v. West, 33 Wis. 617. 7 7 Littauer v. Goldman, 72 N. Y. 506. § 79) WARRANTIES OF INDORSER WITHOUT RECOURSE. 169 transferror by delivery was not liable against such a defect upon a warranty of validity, and that in such caae it is necessary for the transferee in order to recover to prove a scienter, that is, to prove that the transferror had knowledge of the defect. The court said that the law excepts only two cases as coming within the doctrine of an implied warranty, namely, a warranty of title and a warranty that the instrument is genuine and not forged. This case has been ad- versely criticised by the supreme court of the United States ^* in an opinion which accepts the principle, already explained, that it is a condition of the contract of sale, often miscalled an implied war- ranty, that the thing sold must be what it is described or pur- ports to be, and that if the instrument transferred be not a valid and subsisting obligation there is a breach of this condition. It is, indeed, only by accepting this principle that it is possible to imply a warranty of genuineness, and the logical application of the principle requires the implication also of a warranty that the instrument is not invalid, either by reason of incapacity of the original parties or of illegality in its inception.^' The Negotiable Instruments Law *" haa in part at least adopted the rule as laid down in the New York case; for, while it declares that the indorser without recourse warrants that the instrument is valid and subsisting, it excludes this warranty in the case of transfer by delivery as well as of indorsement without recourse, substituting in its place a warranty on the part of such transferror that he has no knowledge of any fact which would impair the validity of the instrument or render it valueless. "Where a bill or note is transferred by delivery or indorsed without recourse, the transferee takes the risk of the insolvency of the maker or other principal party, unless the transferror be guilty of fraud in passing it off with knowl- edge of the fact.'* A broker or other agent who negotiates a bill 78 MEYER V. RICHARDS, 163 TJ. S. 385, 16 Sup. Ct. 1148. See, also. Wood V. Sheldon, 42 N. J. Law, 421; Daniel, Neg. Inst. § 733a. '» "The opinion in this case [Littauer v. Goldman] * • • admits the common law rule and then denies its essential result by eliminating condi- tions of nonexistence which are necessarily embraced in it. * • * Either the principle of warranty of identity must be accepted or rejected; It cannot be accepted and its legitimate and inevitable results denied." Meyer v. Rich- ards, supra, ^er White, J. 80 Section 115. Of. section 116. 81 Bicknall v. Waterman, 5 R. I. 43. There is, however, much conflict of authority on this point. See Datiiel, Neg. Inst. § 737. 170 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 or note without indorsement is liable upon the implied warranties applicable to a transferror by delivery, unless he discloses his agency and the name of his principal.* "DAMAGES AGAINST THE ACCEPTOE, MAKER, DRAWER, AND INDOBSERS UPON THE BILL OB NOTE AND UPON THE WARRANTIES. 80. The acceptor of a bill of exchange and the maker of a promissory note is liable, upon its dishonor, for the amount of the bill or note and legal interest, and also no- tarial expenses where they are allowed by law. Where the drawee of a bill of exchange has agreed for a valuable consideration to accept it, he is liable, upon its dishonor, for his breach of promise to accept, in all dam- ages -which are the immediate consequences of such breach. The measure of damages to be recovered against a draw^er or indorser upon his indorsement is — (a) On an inland bill: the amount of the bill and in- terest, and also protest fees where they are al- lowed. (b) On a foreign bill: the amount of the bill, interest, protest fees, re-exchange, or damages in lieu thereof. The measure of damages to be recovered against the drawer or indorsers in case of a breach of warranty is the original consideration. It is our purpose to point out in this section the practical applica- tion of the rules we have laid down, by showing what damages the courts administer against the parties upon the breach of their con- tracts. For the present we shall leave the matter of consideration as a basis for damage, both as between parties immediate and not immediate, out of the question. The rules pertaining to this point will be discussed further on. The only point to be considered is the * CABOT BANK v. MORTON, 4 Gray (Mass.) 156; WORTHINGTON v. COWLES, 112 Mass. 30. Neg. Inst. L. § 119, so declares the law. ^ 80) THE QUESTION OF DAMAGES. 171 damages which, assuming the contract between the parties to be for value, and enforceable, the courts find were in contemplation of the parties when it was made. In some of these contracts, important items are exchange and re- exchange. Exchange, as we have seen, is the market value in one country of money to be delivered in another. The drawer of a foreign bill contracts for its payment at the place where it is drawn payable. When the bill is dishonored, the doctrine of re-exchange applies. Ke-exchange is a doctrine founded upon equitable principles. It means, for instance, when the payee, for example, gives premium for a bill drawn in this country payable in Paris, Prance, which is dis- honored in Paris, the amount which would restore the payee to the situation he was in when he bought the bill. This is either the pay- ment of the money in Paris that the payee expected to and would get there, or the payment in this country of those sums, together with the difference in value between the whole sum at Paris and the same amount in this country. This difference in value is ascertained by the premium on a bill drawn in Paris and payable in this country which should sell at Paris for the sum claimed.*^ In many states statutes provide for a fixed amount payable by way of damages in lieu 82 Bank of United States v. U. S., 2 How. 737. In SUSB v. POMPE, 30 Law J. C. P. 75, 8 0. B. (N. S.) 538, where a bill was drawn and indorsed in Liverpool, payable in English money, directed to V. at Vienna, by whom it was dishonored, in an action by the Indorsees against the indorsers it was held that the plaintiffs were entitled to recover as much English money as would have enabled them in Vienna on the day of maturity to purchase as many Austrian florins as they ought to have received from the drawee, with the expenses necessary to obtain them. Byles, J., said: "The most obvious and direct mode of obtaining that English money Is to draw on Vienna on the indorser in England a bill at sight for so much English money as will purchase the required number of Austrian florins at the actual rate of exchange on the day of dishonor, and to include in the amount of that bill the interest and necessary expenses of the transaction. The whole amount is called * • * re-exchange. • • • This bill for re-exchange being ne- gotiated at Vienna puts into the pocket of the holder at the proper time and place the exact sum which he ought to have received from the drawee. • • ♦ Although in English practice the re-exchange bill Is seldom drawn, yet the theory of the transaction is as we have above described it, and settles the principle on which the damages are to be computed, although no re-exchange bill be in fact drawn." 172 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 of re-exchange.f Notarial fees are those incurred for a notary where protest is required or permitted by law. The other principal item of damage is the amount nominated in the principal terms of the paper, and this discussion principally per- tains to this, and how far the warranties relate to it. The general rule is that the acceptor and drawer of a bill, the maker of a note, and all indorsers are liable for the amount nominated in the bill, and interest.*^ It is, however, held, though not without weighty dissent, that as against his immediate indorser the recovery of an indorsee is limited to the amount of the consideration paid with interest.* In t Rand. Com. Paper, § 1720. 8 3 Daniel, Neg. Inst. § 749; Rand. Com. Paper, § 1726. Where the Instru- ment provides for Interest, it runs from the date. Dorman v. Dibdln, Russ, & M. 381; Williams v. Baker, 67 111. 238; CAMPBELL PRINTING PRESS & MFG. CO. V. JONES, 79 Ala. 475. See Neg. Inst. L. § 36, snbd. 2. Interest on a demand note runs from demand. Barough v. White, 4 B. & C. 325; Breyfogle v. ' Beckley, 16 Serg. & R. i2C4; Hunter v. Wood, 54 Ala. 71. Where the rate fixed by law as prevailing in absence of contract is lower than the contract rate, the better opinion is that after maturity the contract rate should atilli prevail. Seymour v. Insurance Co., 44 Conn. 300; Cecil v. Hicks, 29 Grat. (Va.) 1; Findlay v. Hall, 12 Ohio St. 610; Pruyn v. Milwaukee, 18 Wis. 568. Contra, Macomber v. Dunham, 8 Wend. (N. Y.) 550; Duran v. Ayer, 67 Me. 145; Newton v. Kennerly, 31 Ark. 626. Cf. Holden v. Trus.t Co., 100 U. S. 72; CROMWELL V. COUNTY OF SAO, 96 U. S. 61. See Daniel, Neg. Inst. § 145Sa. Interest after maturity is by way of damages. Where no interest is- reserved, Interest runs after maturity at the legal rate. Lithgow v. Lyon, Coop. Ch. (Tenn.) 29; Laing v. Stone, 2 Man. & R. 562; Swett v. Hooper, 62 Me. 54; Godfrey v. Cray craft, 81 Ind. 476, As to conffict of law governing in- terest by way of damages, see post, 188. * Munn V. Commission Co., 15 Johns. 43. In this case it was decided that- where a payee parts, for a discount greater than the legal rate of interest, with a valid note upon which he might maintain an action when mature, such transfer is not usurious, even where the payee indorses the note, and the in- dorsee may, on nonpayment by the maker, sue the indorser, but that his- recovery will be the amount advanced by him and the Interest thereon. In CRAM V. HENDRICKS, the above case was cited upon a point similar, and the- decision was to the sajue effect. 7 Wend. (N. Y.) 569; Ingalls v. Lee, 9 Barb. 647; Judd v. Seaver, 8 Paige, 548; Hutchins v. McCann, 7 Port. (Ala.) 94;. Noble V. Walker, 32 Ala. 4^6; Raplee v. Morgan, 3 111. 561; Semmes v. Wilson, 5 Cranch, C. C. 285, Fed. Cas. No. 12,658; Bank of U. S. v. Smith, 4 Cranch, C. C. 712, Fed. Cas. No. 936. But see contra, Roark v. Turner, 29 Ga. 455; NATIONAL BANK v. GREEN, 33 Iowa, 140; DURANT v. BANTA, 27 N. J.. § 80) THE QUESTION OF DAMAGES. 173 addition to this, the rules governing these parties as to re-exchange and fees are as follows: The acceptor at common law is probably not primarily liable to the holder for re-exchange, because his con- tract is to pay the money named in the bill at the place of payment and not at the place of drawing; '* nor is he liable for damages; *' though the better reason seems to be that he is liable to the drawer, where he has dishonored the bill which he had promised to pay and the drawer has been obliged to pay re-exchange.' ° It is probably the common-law rule, also, that the maker of a note is liable neither for re-exchange nor damages because of the supposed rule that notes are subject to the rules of the law merchant only ifi those respects covered by the enactment of the statute of Anne; '^ though it must be added that this point is by no means settled.*' Protest fees are chargeable against the acceptor and maker only when a protest is required or permitted by law. But when it is required, or permitted but not required, they are allowed as an item of damage.'' The drawer and the indorsers, in their succession, are liable for protest fees, and, in case of foreign bills, for all re-exchanges, or else dam- ages in lieu thereof."" These rules' being understood, it only remains to consider the dam- Law, 624. See Daniel, Neg. Inst. §§ 767, 768; 2 Ames, Cas. Bills & N. 819 (supporting the latter view). s* Newman v. Goza, 2 La. Ann. 642; Trammell v. Hudmon, 56 Ala. 237; "Watt V. Riddle, 8 Watts, 545. 8 5 Bowen v. Stoddard, 10 Mete. (Mass.) 375; Manning v. Kohn, 44 Ala. 343. 86 WALKER V. HAMILTON, 1 De Gex, F. & J. 602; Bowen v. Stoddard, 10 Mete. (Mass.) 379, per Hubbard, J.; In re General South American Co., 37 Law T. 599. Some authorities hold that the acceptor is liable for re-exchange to the holder. Daniel, Neg. Inst. § 1449. 87 Martin v. Franklin, 4 Johns. (N. Y.) 124; SCOFIELD v. DAY, 20 Johns. Johnson v. Bank of Fulton, 29 Ga. 260; German v. Ritchie, 9 Kan. 110; MERRITT V. BENTON, 10 Wend. (N. Y.) 117 (where it was held that the protest fee Is an expense to which the holder of a note is subjected by the default of an indorser, whose duty it is to pay at maturity, and that the holder should therefore recover it. "It may fairly be considered as a charge incident upon the indorser's failure to perform his contract"). «o MELLISH V. SIMEON, 2 H. Bl. 378; Tied. Com. Paper, § 407. 174 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 ages administered by the courts with reference to the drawee, when he refuses to accept, and upon the warranties which have been the subject of discussion in this chapter. Of these latter, the students will have noticed that we have pointed out a distinction between the acceptor, on the one hand, and the drawer and indorser, on the other. In the case of the acceptor, the rules of law were merely to the effect that the acceptor was estopped from denying certain items. There was nothing of a promise which might be the basis of an affirmative right contained in them. The acceptor's liability, there- fore, is limited to the contract contained in words of the bill. But the liability of the drawer and indorser on his so-ealled warranty is the basis of an affirmative right of action. It is difEerent in its nature from the estoppel of the acceptor, because the acceptor is not afSrma- tively liable as acceptor thereon. He is, however, liable as drawee before acceptance to the drawer, if, under certain circumstances, he does not accept the bill. The drawer, as we have seen, may then have one of two remedies. He may either sue the drawee upon the original consideration or for damages.'^ What the original consid- eration is will be different according to the circumstances of each case. Where the drawer chooses the alternative of daihages, he sues upon the promise to accept, and the damages are then measured by his loss and inconvenience, and not by the amount of the draft.'^ The promise to accept is then the foundation of the right of action, and not the bill itself. The general rule that the warrantor shaU pay so much as the actual value of property falls short of what it would be worth if the war- ranty had been kept, applicable to warranties of quality or title at personal property, does not apply to bills and notes."' With nego- tiable instruments between immediate parties the recovery of dam- ages is limited to the amount paid out by reason of the breach of war- ranty, or, in other words, to refunding the consideration."* The right upon which such an action rests is that upon which actions fofl "1 See supra, p. 80. 02 2 Sutb. Dam. p. 104; Ilsley v. Jones, 12 Gray (Mass.) 260; Sedg. Dam. (6th Ed.) p. 296. »3 Sedg. Dam. (6th Ed.) p. 340; Suth. Dam. p. 149. tx GOMPERTZ V. BAETLETT, 2 El. & Bl. 854; ALDKICH T. JACKSON, 5 E. I. 218; BELL v. DAGG, 60 N. Y. 530. §80) THE QUESTION OF DAMAGES. 175 moneys had and received also rest. The first element of such actions is that money or property has been received by the defendant to which in equity and good conscience he is not entitled, and the court, in its remedy, aims to restore just the property received, neither more nor less.'^ The consideration may always be shown betw^een these immediate parties, and the consideration proved always measures the amount of the recovery. °' These rules we have just given must be applied with caution. They are doubtless the settled law in case of warranties between imme- diate parties. But even between immediate parties there is not much business reason why the general rule of contracts should be departed from and the consideration returned rather than the contract per- formed. The effect of the consideration should be, as in other cases, only to make the indorser's promise of indemnity binding, and not to furnish a measure of damages. There is still less reason why the consideration should furnish a measure of damage between parties not immediate. As between them the consideration is not even open to inquiry. °' And if it be true that the consideration is eliminated as an item of proof, it would logically follow that it would be elimi- nated as an item of damage also. In which case the other ground of damages — ^the promise of the indorser to pay the whole instru- ment — remains for the court to apply. There is privity of contract sufflcient for this between remote parties because privity between immediate indorsers is carried forward through the chain of indorse- 81! It has Iseeii held that an accommodation indorser who indorsed a draft which had without his knowledge been raised, to enable another to obtain the money at a bank, coiild not be held liable by reason of the alteration without demand and notice, the court holding that an indorser, to be held as guarantor, must have himself received consideration. Susquehanna Valley Bank v. Loomis, 85 N. Y. 207. But this case has been adversely criticised on the ground that the consideration paid to the party accommodated is attrib- utable to the accommodation indorser, and that the rule of notice applies only to the indorser's contract of indemnity. See Daniel, Neg. Inst. § 669. 9' BROWN V. MOTT, 7 Johns. (N. Y.) 361; Braman v. Hess, 13 Johns. (N. Y.) 52; Eapelye v. Anderson, 4 HiU (N. Y.) 472; WIFFEN v. ROBERTS, 1 Esp. 2G1; Livingston v. Hastie, 2 Gaines, 248. 98 CRAM V. HENDRICKS, 7 Wend. (N. Y.) 569; Munn v. Commission Co., 15 Johns. (N. Y.) 44; Collier v. Nevill, 3 Dev. 31; Littell v. Hord, Hardin, 87; Cowles v. McVlckar, 3 Wis. 725; Importers' & T. Nat. Bank v. Littell, 47 N.. J. Law, 234. 176 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 ments to the holder prosecuting; so that, in the phraseology of the old common-law remedies, debt would lie °° as well as assumpsit for moneys paid out on account of the indoreement.^"" And thus the better reason seems, in case of parties not immediate, to support the variation from the rule we have quoted, and to hold that as to them the face of the paper furnishes the measure of damages.^"^ ACCOMMODATION PAETIES AND PERSONS ACCOMMO- DATED. 81. AN ACCOMMODATION PARTY — Means a person who has signed a bill or note as acceptor or drawer, maker, or indorser, -without recompense, and for the pur- pose of lending his name to some other person as a means of credit-^'^ 8S. The accommodated party impliedly contracts: (a) That he will pay the bill or note. (b) That he vnll repay the accommodation party for all loss incurred, if that party is com- pelled to pay in case of his default. 83. The accommodation party is liable to all parties ex- cept the party accommodated. As between the accommodated and accommodation party, the paper is given gratuitously. Between them there is no binding contract, because the accommodation paper is not based upon a consideration. 89 ONONDAGA COUNTY BANK T. BATES, 3 HiU (N. T.) 53. In this case tlie court referred to the case of Wilmarth v. Crawford, 10 Wend. (N. Y.) 343, in .wLicli it Iiad held that debt would lie by an indorsee against the maker of a note on the ground that, since the statute making promissory notes negotiable, the money payable thereby became, by virtue of the transfer, due and payable to Indorsee or holder; and that, in judgment of law, privity of contract existed between the parties. See, also, HODGES v. STEWARD, 1 Salk. 125; Priddy v. Henbrey, 1 Barn. & C. 674; Stratton v. Hill, 3 Price, 253; Kiddle v. Mandeville, 5 Cranch, 322. 100 Barker v. Casidy, 16 Barb. 177. 101 Mason v. Mason, 3 Cranch, C. C. 648, Fed. Cas. No. 9,245. io2Benj. Chalm. Dig. art. 90; Byles, Bills, 131; Band. Com. Paper, § 472; 1 Pars. Notes & B. 184. Of. Neg. Inst. L. § 55. §§ 81-83) ACCOMMODATION PARTIES AND PERSONS ACCOMMODATED. 177 But subsequent parties, who discount the paper, are on a different footing. "With them, not only the accommodated, but also the accom- modation, party may be considered as entering into a contract upon a consideration received by the accommodated party only,^°' for the accommodation party has offered to all the world to loan his credit upon the instrument."* The parties who, subsequent to the offer, have either discounted the instrument or paid for it when due, have accepted that offer and paid for it, and may enforce it even though themselves subsequent accommodation parties.^"^ Thus, in accom- modation paper there are three classes of relations to be considered: (1) The liability upon the paper of the accommodated party to the accommodation party. (2) The liability upon the paper of the accommodating party to the person for whose accommodation he has given it. (3) The liability upon the paper of the accommodating party to all the other parties who take it.^"" In case of a bill, if the acceptance be for the drawer's accommoda- tion, the acceptor does not thereby become entitled to sue the drawer upon the bill. But when 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.'"' This is equally the case with the accommodation maker of a note. He cannot sue the payee for whom he makes the accommodation. In either case, only the amount paid by the accom- modation party can be recovered. The reason for this is that, the maker and acceptor of the instrument being the ultimate parties to it, when the instrument is paid by them it is extinguished, and no longer exists as a valid instrument. Therefore, the instrument not being in existence, the acceptor or the maker cannot recover upon 103 Teaton v. Bank of Alexandria, 5 Cranch, 49. 104 Meyer v. Hibsher, 47 N. Y. 265. 105 KELLY V. BUEROUGHS, 102 N. Y. 93, 6 N. E. 109. 106 Hodges V. Nash, 43 111. App. 638, Johns. Cas. Bills. & N. 153; Thatcher V. West River Nat. Bank, 19 Mich. 196; Warder v. Gibbs, 92 Mich. 29, 52 N. W. 73. The fact that a bill or note was accommodation paper furnishes no defense as against one advancing money upon it. Church v. Barlow, 9 Pick. (Mass.) 547; Thompson v. Shepherd, 12 Mete. (Mass.) 311; SHAW v. KNOX, 98 Mass. 214; Davis v. Randall, 115 Mass. 547. But see Quinn v Fuller, 7 Gush. (Mass.) 224. lOT Pearce v. Wilkins, 2 N. Y. 469. NEG.BILLS.— 12 178 OF THE NATURE OF THE LIABILITIES OF THE PAETIES. (Ch. 5 the instrument itself.^"* The principle is the same when the accom- modation party is subsequent to the party ^'"' for whom he gives the accommodation as where the accommodated party is the maker of a note and the accommodation party is payee. There, the instru- ment being without consideration as between the payee and thie maker, the accommodation party cannot sue the accommodated party, because the instrument, as between them, is without consideration and a nudum pactum. The accommodated party can in no case look to the accommodation party, for the reason that the obligation, as between them, is without consideration and a nudum pactum; and also that the purpose of the instrument was that the accommodation party should give it "the security" of his name. This being the in- tention of the obligation, no action will lie in behalf of the party to whom accommodation is given.^^" These relations between the accommodated and accommodation parties do not invalidate it as to third parties. Knowledge of the mere want of consideration between the original parties will not alone prevent the purchaser from becoming a bona fide holder.^ *^ Accom- modation paper is daily placed in the market for discount or sale, and the indorsee or purchaser who knows that a bill or note was drawn, made, accepted, or indorsed without consideration is as much enti- tled to recover as if he had been ignorant of the fact^^'' The pur- 108 Griffith V. Reed, 21 Wend. 505; Young v. Hockley, 3 Wils. 346; Pomeroy V. Tanner, 70 N. T. 547; Suydam v. Westfall, 2 Denio, 205. But In Fowler v. Strickland, 107 Mass. 552, It was held that an accommodation payee and indorser, for accommodation of the maker, who took up the note for less than Its face, could recover the full amount from the maker. 109 Van Duzer v. Howe, 21 N. Y. 531; Kitchel v. Schenek, 29 N. Y. 515. 110 Jackson v. Warwick, 7 Term E. 121; LANCBY v. CLARK, 64 N. Y. 209; Knight V. Hunt, 5 Bing. 432; Sparrow v. Chisman, 9 Barn. & C. 241; THOMP- SON V. CLUBLEY, 1 Mees. & W. 212. In this action by an indorsee against the acceptor of a bill of exchange, it was held that the acceptor might show that the acceptance wag for the accommodation of the plaintiff, and that he had received no consideration from the drawer, and also that it was agreed that when due, the bill should be taken up by the plaintiff. 111 Fitch V. McDowell, 80 Hun, 207, 30 N. Y. Supp. 31; Palmer v. Field, 76 Hun, 229, 27 N. Y. Supp. 736. 112 MOORE V. CROSS, 19 N. Y. 227; Meyer v. Hibsher, 47 N. Y. 265; Montross v. Clark, 2 Sandf. (N. Y.) 115; Lincoln v. Stevens, 7 Mete. (Mass.) 529; Stephens v. Monongahela Nat. Bank, 88 Pa. St 163; Thatcher v. Bank, §§ 81-33) ACCOMMODATION PARTIKS AND PERSONS ACCOMMODATED. 179' chaser of accomniodation paper with mere notice of the accommoda- tion is a bona flde purchaser."' The bill is accepted or note made for the accommodation of another, for the purpose of furnishing &> guaranty. The fact that all the world knows it was a guaranty with- out consideration is immaterial."* And if the accommodation party seeks a defense in saying that it is accommodation paper, it will not be necessary for the holder to show on hia part in rebuttal that he- gave value for it. This rule is subject to modifications. In New York ^^^ the authori- ties depart from the English rule. An accommodation indorser is^ discharged by the transfer of a bill or note after maturity, because it is considered unfair to treat an accommodation indorsement as bl continuing guaranty.^^' It was not the intention of the accommoda- 19 Mich. 196; Jones v. Berryhill, 25 Iowa, 289; Cronlse v. KeUogg, 20 111. 11. Where an accommodation note was executed at the request of the person to- whom it was delivered, on his statement that he needed money and had ex- ceeded his line of discounts, and was made payable to a bank, the obvious- purpose was to procure its discount at such bank; and the fact that when it made the discount it was chargeable with notice of the purpose for whlchi the note was given would not prevent its recovery thereon. Israel v. Gale, 174 U. S. 391, 19 Sup. Ct. 768. 113 GRANT V. ELIilCOTT, 7 Wend. (N. Y.) 227; BEOWN v. MOTT, 1 Johns., (N. Y.) 361; Montross v. Clark, 2 Sandf. (N. Y.) 115; Thatcher v. West River Bank, 19 Mich. 202; CHARLES v. MARSDEN, 1 Taunt. 224; Jones v. Berry- hill, 25 Iowa, 289; Bank of Ireland v. Beresford, 6 Dow, 237. 114 In the case of GRANT v. ELLICOTT, 7 Wend. (N. Y.) 227, holding that, in an action by the payee against the acceptor, the fact of an acceptance being for accommodation was no defense, the court cited the opinion of Lord Eldon in SMITH v. KNOX, 3 Esp. 46, to the effect that where an accommodation paper is sent out it is no answer. In an action upon snch bill, that the acceptor accepted for the accommodation of the drawer, and that such fact was known to the holder. If a bona flde consideration were given, the holder could re- cover, though with full knowledge of the transaction. See, also, CHARLES- V. MARSDEN, 1 Tamit. 224. 115 CHESTER V. DORR, 41 N. Y. 279. 110 In the ease of CHESTER v. DORR, it was held that an accommodation- indorser, without consideration, of a promissory note, is not liable to a trans- feree after maturity from the person for whose accommodation It was in- dorsed, although the transferee paid full consideration. The defense of want; of consideration attaches after maturity, into whatever hands It may come. In the course of his opinion, Woodruff, J., said: "I deem the just view of the subject to be that when a note has become due, and Is dishonored, the rights- 180 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 tion indorser to be liable upon his indorsement for all time. It was only his intention to give indemnity to such persons as took the bill ■or note during the time when, by its terms, it was supposed to cir- ■culate, or, in other words, up to the time of the maturity of the instru- inent. And it would be contrary to the intention of the parties and unwarrantable to create extensions of time after the instrument had 3)ecome due. This modification prevails in some other states.^^^ It is in direct contradiction to the English and to the common-law crule.^^' Another modification of this rule applying to immediate parties is in case of what is called "diversion." It often happens that one busi- jness man tells a second that he wants to borrow his credit for a ^specified purpose, and, to further that purpose, the second man ac- cepts a bill, or makes or indorses a note for the first to discount. "This arrangement amounts to an agreement between them that the Instrument shall be devoted to that especial purpose. And the ques- tions arising upon the diversion of accommodation paper are mainly -whether the instrument has been used for the purpose for which it •was given or not. ,,. , The cases make a distinction between material and immaterial ■diversion. A material diversion has these elements: (1) The accom- anodation party must have some interest in the application of the mioney raised on the bill or note. Unless he has, he is not in a posi- tion to object that there has been a misapplication of the paper on •which he is the accommodation party.^^° (2) The accommodation Taill or note must be made for some specific purpose, and be diverted , sind responsibilities of the parties thereto are fixed * * * and thereafter lie who takes it takes it with knowledge of its dishonor, * ♦ * and with Just such right to enforce it as the holder has, and no other." CHESTER v. DORR, 41 N. Y. 279. See, also, Hascall v. Whitmore, 19 Me. 102. 117 Bower v. Hastings, 36 Pa. St. 285; Barnett v. OfCerman, 7 Watts, 130; Hoffman v. Foster, 43 Pa. St. 137; Battle v. Weems. 44 Ala. 105; Bacon v. jaarris, 15 R. I. 599, 10 Atl. 647. lis CHARLES V. MAESDEN, 1 Taunt. 224; STURTEVANT v. FORD, 4 Man. & G. 101; Carruthers v. West, 11 Q. B. 143; STEIN v. YGLESIAS, 3 'Dowl. 252; First Nat. Bank of Salem v. Grant, 71 Me. 374, with note; SEY- 5FERT V. EDISON, 45 N. J. Law, 393. See post, p. 211. 118 Edw. Neg. Inst. § 451; Mohawk Bank v. Corey, 1 Hill, 513; Story, Bills, ^ 191; Dawson v. Goodyear, 43 Conn. 548; Quinn v. Hard, 43 Vt 375; FET- TERS T. MUNCIE NAT. BANK, 34 Ind. 254. §§ 81-83) ACCOMMODATION PARTIES AND PERSONS ACCOMMODATED. 18l» to some other purpose.^^" An immaterial diversion is where ai«. accommodation bill or note is made for the purpose of loaning th& parties credit generally/ ^^ or where the substantial design for which the instrument was given is not departed from/^" or where the agree- ment for which the instrument was given and which is broken is not one of substance and is unimportant. An immaterial diversion can- not avail as a defense. A material diversion is thus, in some respects^ like a contract, based upon a consideration. There is some substan- tial interest at stake which makes it binding upon the accommoda- tion party to carry out its purpose. If he fails to do this, the reason* for its being given fails. It then becomes the duty of the accommo- dated party having it in possession to return it. If, in defiance of the agreement, the note is misapplied, then it is a fraud, which, as in the- case of other contracts, vitiates the agreement between parties and. privies, and against the defense of which the courts will allow ncn recovery."^ The purchaser of accommodation pape.c obtained by fraud, deception, or fraudulently misapplied, with notice of these facts, is not a bona fide holder, but rather, if he attempts to recover uporc the paper, is a partaker in the fraud.^^* Carrying in mind that accommodation paper is a mere loan of credit, or, as it sometimes is put, a loan of money, the purchaser be- 120 Bank of Rutland v. Buck, 5 Wend. 66; Kasson v. Smith, 8 Wend. 437;. Spencer v. Ballou, 18 N. Y. 327; WOODHULL v. HOLMES, 10 Johns. (N. Y.)' 231. 121 Cole v. Saulpaugh, 48 Barb. 104; Schepp v. Carpenter, 51 N. Y. 602. 122 Bank of Chenango v. Hyde, 4 Cow. 567; POWELL v. WATERS, IT Johns. (N. Y.) 176. 123 Denniston v. Bacon, 10 Johns. 196. 124 In the case of Small v. Smith, 1 Denio (N. Y.) 583, It was held that" where accommodation paper had been negotiated in violation of an agree- ment between payee and maker, upon which agreement the payee had in- dorsed, the holder could not recover against such accommodation indorser^ unless the note had been received in good faith, for a valuable consideration,., and without notice of the agreement. Where the holder took such a not&- with notice of an agreement, he was held to have taken subject thereto. Warden v. Howell, 9 Wend. 170; Brown v. Taber, 5 Wend. 566; Farmers" Bank v. Noxon, 45 N. Y. 762; STODDARD v. KIMBALL, 6 Cush. (Mass.) 469- DAGGETT v. WHITING, 35 Conn. 372; Evans v. Kymer, 1 Barn. & Adol' 528; Key v. Flint, 8 Taunt. 21; Gray v. Bank of Kentucky, 29 Pa. St. 365t DUNN V. WESTON, 71 Me. 270; Hidden v. Bishop, 5 E. I. 2y. i82 OF THE NATURE OF THE LIABILITIES OF THE PARTIES, (Cll. 5 ing the lender, and the seller of the paper the borrower,^*" it is easy 'to reach the next logical step in the theory. Where there is no limi- 'tation or restriction as to the manner in which accommodation paper ■IS to be used, the accommodated party is at liberty to sustain his -credit with it in any way he chooses. He may appropriate it to any purpose. In such a case there can be no substantial material diver- ^sion; ^^° and, even when there is a departure from the express direc- 'tions of the accommodation party in regard to the note, it will some- times not amount to a material diversion. The accommodation party may, for instance, direct it to be discounted at one bank, and the accommodated party may discount it at another,^^' and generally, if the paper has accomplished the purpose in the minds of the parties at the time of giving the accommodation and answers the test that it has in no wise changed the responsibility of any of them, the diver- sion will be disregarded by the courts and deemed immaterial.^^^ The fact that paper was originally given for accommodation does not affect the ordinary rule that the holder as against any one not "his immediate indorser is not under the necessity of showing that "he gave value.^^' He may recover the full amount of the paper, but ;as to this the authorities are conflicting, some holding that his recov- ■ery is limited by the amountTJaid.^'" It is immaterial that the holder acquired the paper for a pre-existing debt,^'^ or as collateral secu- rity; although if he acquired it as collateral security he can recover from the accommodation party only the amount of the debt.^'" A 12 5 OLAFLIN v. BOORUM, 25 N. E. 360, 122 N. Y, 385; Clark v. Slsson, 22 N. T. 312; Newell T. Doty, 33 N. Y. 83. 120 Cole V. Saulpaugh, 48 Barb. 104; Seneca Co. Bank v. Neass, 3 N. Y. 442; Grandin v. Le Eoy, 2 Paige, 509; Mohawk Bank v. Corey, 1 Hill, 514; Aga- wam Bank v. Strever, 18 N. Y. 502. 127 POWELL V. WATERS, 17 Johns. (N. Y.) 176; Bank of Chenango v. Hyde, 4 Cow. (N. Y.) 567. 128 Duel V. Spence, 1 Abb. Dec. 559; Seneca Co. Bank v. Neass, 3 N. Y. 442; Duncan v. Gilbert, 29 N. J. Law, 521; JACKSON v. BANK, 42 N. J. Law, 178; Briggs V. Boyd, 37 Vt. 538; DUNN v. WESTON, 71 Me. 270. 12 9 MILLIS v. BARBER, 1 Mees. & W. 425; Harger v. Worrall, 69 N. Y. 370. 180 Daniel, Neg. Inst. §§ 754-757. As to the right of a purchaser for value ;ln general to recover the full amotint when less is paid, post, p. 316. 131 GROCERS' BANK v. PENFIELD, 69 N. Y. 502; Lord v. Bank, 20 Pa. :St. 384. 132 NASH V. BROWN, Chit. Bills (10th Ed.) 53; Hilton v. Smith, 5 Gray .(Mass.) 400; Atlas Bank v. Doyle, 9 R. I. 76. §§ 83a-83b) conflict of laws. 183 partner has no right to make accommodation paper in the firm name, but the fact that the paper was so made without authority is no defense against a bona fide purchaser.*'* Neither is it a defense against a bona fide purchaser that paper executed by a corporation was accommodation paper, and ultra vires.*'* Presentment for pay- ment is not required in order to charge an indorser for whose accom- modation the instrument was made or accepted, for the reason that he has no recourse against any other party; nor is he entitled to notice of dishonor.*'" Payment by the party accommodated, since he is in fact primarily liable, operates as a discharge of the instrument.*" CONFLICT OF LAWS. 83a. The validity of the contract of the acceptor, maker, dra\(rer, and indorser of a bill or note is determined gener- ally by the law of the place where the contract is made. 83b. The interpretation and obligation of the contract of the acaaptor, miker, draivar, and indorser of a bill or note are determined by the law^ of the place w^here the contract is made, unless the cctofract is to be performed in another place, in w^hich case the law^ of the place of performance governs. 135 ChemuDg Canal Bank v. Bradner, 44 N. Y. 680; Beach v. Bank, 2 Ind. 488; Waldo Bank v. Lumbert, 16 Me. 416; HOGARTH v. LATHAM, 3 Q. B. Div. 643. The purchaser Is of course affected with notice if there is anything in the character of the indorsenaent, as for example if it be an irregular indorsement, or in the circumstances, to inform him that the paper was given for accommodation. Band. Com. Paper, § 419. Post, p. 322. 134 Bird V. Daggett, 97 Mass. 494; National Bank v. Young, 41 N. J. Eq. 531, 7 Atl. 488; American Trust & Savings Bank v. Gluck, 68 Minn. 129, 70 N. W. 1085; Jacobs Pharmacy Co. v. Trust Co., 97 Ga. 573, 25 S. B. 171. 136 Sharp V. Bailey, 9 Barn. & C. 44; Miser v. Trovinger, 7 Ohio St. 281; HULL V. MYERS, 90 Ga. 674, 16 S. B. 653. See Neg. Inst. L. §§ 140, 186, to this effect. 136 LAZARUS V. COWIE, 3 Q. B. 459; COOK v. LISTER, 32 Law J. C. P. 121; BLENN v. LYFORD, 70 Me. 149. Chalm. Bills & N. art. 234. To this effect, Neg. Inst. L. §§ 200, 202. Compare 2 Ames, Cas. Bills & N. 825. See post, p. 296. 184 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 Conflict of Laws. A few words must be said concerning the so-called "conflict of laws," in its effect upon the rights and liabilities of the parties to negotiable instruments. Since a bill or note may be drawn or made in one country, accepted or payable in another, indorsed in a third, and suit may be brought in a fourth, questions frequently arise, where the laws of the different countries conflict, as to which law governs. Sometimes the governing law is the law of the place where the con- tract is made, or the lex loci contractus; sometimes the law of the place where the instrument is payable, or the lex loci solutionis; and sometimes the law of the place where action is brought, or the lex fori. As has already been stated, ^^'' the several states in this re- spect stand towards each other in the relation of foreign countries, and unfortunately the law of negotiable instruments differs widely in the different states. Same — Execution and Validity. The law of the place where the contract is made governs the for- malities of its execution. This includes the formal validity of the bill or note as drawn or made, and of the contracts of the acceptor and indorsers.^^* Thus the sufficiency of a parol acceptance is de- termined by the law of the place of acceptance, and if it be valid there it will be enforced elsewhere, even in a state where an acceptance must be in writing.^^' The law of the place of contract also governs the validity of the con- tracts of the different parties.^*" If the consideration is legal where 137 Ante, p. 24. 138 Dacosta v. Davis, 24 N. J. Law, 319; HYDE v. GOODNOW, 3 N. Y. 266; Heretic v. Koessler, 109 N. Y. 127, 16 N. B. 198; EVANS v. ANDERSON, 78 111. 558; Moore v. Clopton, 22 Ark. 125; Wood v. Glbbs, 35 Miss. 559; Thayer v. Elliott, 16 N. H. 102. Such Is the provision of the English Bills of Exchange Act (section 72, subd. 1). The Negotiable Instruments Law does not deal with the conflict of laws. 139 Scuddcr v. Bank, 91 U. S. 406; EXCHANGE BANK v. HUBBARD, 10 C. C. A. 295, 62 Fed. 112; Hubbard v. Bank, 18 C. C. A. 525, 72 Fed. 234; MASON V. DOUSAY, 35 111. 424; Bissell v. Lewis, 4 Mich. 450. Cf. Hall v. Cordell, 142 U. S. 116,, 12 Sup. Ct. 154. 140 Akers v. Demond, 103 Mass. 318; DUNSOOMB v. BUNKER, 2 Mete. (Mass.) 8; Seudder v. Union Bank, 91 U. S. 406; Adams v. Robertson, 37 111. 45. There is much conflict as to whether if the contract Is to be performed §§ 83a-83b) conflict oi' laws. 185 the instrument is executed, it is valid everywhere; and if illegal vhere executed, it is invalid everj'where. "The question of * * * -validity [of the contract], as affected by the legality of the consider- ation, or of the transaction upon w^hich it is founded, and in which it took its inception as a contract, must be determined by the law of the state where that transaction was had. No other law can apply to it. Usury, in a loan effected elsewhere, is no offense against the laws of Massachusetts. * * » But when a usurious or other illegal consideration is declared by the laws of any state to be incapable of sustaining any valid contract, and all contracts arising therefrom are declared void, such contracts are not only void in that state, but void in every state and everywhere." ^*^ The harshness of the rule in regard to usury is, however, modified by the qualification that if the rate of interest would be lawful at the place of payment the parties may elect as to the law by which the contract is to be gov- erned; and conversely if the rate of interest would be usurious at the place of payment, but is not usurious at the place where the instrument was made, the instrument may be held valid.^*^ A bill or note void for want of a stamp is void everywhere, although if the stamp is merely a condition of its admissibility in evidence the re- quirement will have no effect without the jurisdiction.^*^ Same — Interjpretation and Oiligation of Contract. The law of the place where the contract is made also governs the nature, interpretation, and obligations of the various contracts of in another country its laws determine the validity. See 2 Ames, Cas. Bills & N. 255, note 1, and cases collected. Mr. Daniel so states the law. Daniel, Neg. Inst. § 868. 1*1 Akers v. Demond, 103 Mass. 323, per Wells, J. 1*2 Harvey v. Archibold, 1 Eyan & M. 184; DEPAU v. HUMPHREYS, 20 Mart. N. S. (La.) 1; POTTER v. TALLMAN, 35 Barb. (N. Y.) 182; KILGORE v. DEMPSEY. 25 Ohio St. 413; Vilet v. Camp, 13 Wis. 19S; MILLER v. TIF- FANY, 1 Wall. 310; McKay's Estate v. Bank (Colo. Sup.) 59 Pae. 745; Rand. Com. Paper, §§ 43, 44. i*3Alves V. Hodgson, 7 Term R. 241; Brlstow v. Sequeville, 5 Exch. 275; Fant V. Miller, 17 Grat. (Va.) 47. If tlie performance is to be in another county, it may be that the absence of a stamp would be Immaterial. Daniel, Neg. Inst. § 915. The Bills of Exchange Act (section 72, subd. 1, a) enacts that where a bill is issued out of the kingdom, it is not invalid by reason that it is not stamped according to the law of the place of issue. 186 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 the parties, except that where the contract is to be performed in an- other place the law of that place governs.^** Accordingly the nature of the instrument, as negotiable or non- negotiable, is as a rule determined by the place where it is made.'*'' Thus a promissory note payable to bearer, made in England, is trans- ferable by delivery in France, although by the law of France trans- fer by delivery be inoperative.'** And when a note was made in Mississippi, where the maker might set up equitable defenses against a bona flde holder, and was transferred in Louisiana, it was held in an action in that state by the indorsee that the maker was entitled to the defenses allowed by the former state, his obligations having been contracted in the light of its law.'*^ So where a note was made in Scotland payable to A, and hence not negotiable by English law, but negotiable by Scotch law, and was indorsed in England, it was held by the Scotch court that the maker could not object to the form of transfer, inasmuch as it was according to the law which determined the nature of the instrument.'** If, however, a note be not negotiable according to the law of the place where it is pay- able, it will be held non-negotiable, although negotiable according to the law of the place where it was made.'*" It follows from what has been said that the liability of the maker •of a note is governed by the law of the place where it is made, and of the acceptor of a bill by the law of the place where it is accepted, unless in either case the instrument is payable elsewhere, in which ■case the law of the place of payment will control. This principle regulates the time of payment, for example the number of days of 1*4 ANDREWS v. POND, 13 Pet. 65; Prentiss v. Savage, 13 Mass. 21; FANNING v. CONSEQUA, 17 Johns. (N. Y.) 511; HYDE v. GOODNOW, 3 N. Y. 266; Freese v. Brownell, 35 N. J. Law, 285; Thorp v. Craig, 10 Iowa, 461; Daniel, Neg. Inst. § 867; Rand. Com. Paper, § 31. "The general principle is that the law of the place of performance is the law of the contract. This rule applies to the operation and effect of the contract, and to the rights and obliga- tions of the parties under It." Abers v. Demond, 103 Mass. 323, per Wells, J. 145 DE LA CHAUMETTE v. BANK, 2 Barn. & Adol. 385; Robertson v. Burdekin, 1 Ross, Lead. Cas. 812; ORY v. WINTER, 4 Mart. (La.) 277; WOODS v. RIDLEY, 11 Humph. (Tenn.) 194. 146 DE LA CHAUMETTE v. BANK, 2 Barn. & Adol. 385. 147 ORY v. WINTER, 4 Mart. (La.) 277. 148 Robertson v. Burdekin, 1 Ross, Lead. Cas. 812. 140 Freeman's Bank v. Ruekman, 16 Grat. (Va.) i2a 4§ 83a-8ob) CONFLICT of laws. 187 grace, if any, to which the acceptor or maker Is entitled.^" A strong illustration is found in a case where a bill, drawn in England, was accepted by the drawees in Paris, and before the day of pay- ment, owing to the outbreak of the Franco-Prussian war, the French goTernment passed a law prolonging the time of protest on nego- tiable instruments signed before its promulgation and postponing the time of payment, and it was held in an action by the indorsee against the drawers that presentment for payment in accordance with this law was sufQcient.^'^ "The liability contracted by the drawer and by the indorser is dif- ferent from that of the acceptor and maker in that the former under- take to pay only in the event of dishonor and upon receiving due notice. They contract to pay at the place of drawing or of indorse- ment respectively, and their contracts are hence governed by the law of the place where their contracts are entered into. Thus where the defense of failure of consideration was available to the drawer according to the law of Mississippi where the bill was drawn, but not according to the law of Louisiana where the drawee resided, it was held that the drawer was entitled to the defense.^"'' And as there may be many indorsements, each made in a different state, a series of contracts of indorsement may arise, each governed by the law of a different state, and all differing in effect one from an- other.^"* It is to be observed, however, that while the liability of the indorser as against his immediate and subsequent indorsees up- on his contract of indorsement is governed by the law of the place of the indorsement, a different question is presented as to the effect of the indorsement as a transfer and in conferring rights upon the transferee and subsequent holders against the original parties. As to the effect of the indorsement as a transfer there has been great diversity of opinion, but it seems that under the decisions the rights of the indorsee or transferee by delivery against the original par- ties are governed by the law of the place where the prior contract "0 Washington Bank v. Triplett, 1 Pet. 25; BOWBN v. NEWELL, 13 N. Y. 290; BLODGETT v. DURGIN, 32 Vt. 361; Walsh v. Dart, 12 Wis. 635. "1 EOUQUETTE v. OVERMANN, L. R. 10 Q. B. 525. 162 Wood v. Glbbs, 35 Miss. 560. 1" Williams v. Wade, 1 Mete. (Mass.) 82; VIOLETT v. PATTON, 5 Cranch, 142; Trabue v. Short, 18 La. Ann. 257; IngersoU v. Long, 4 Dev. & B. (N. C.) 293; HUNT v. ST AND ART, 15 Ind. 33. 188 OF THE NATURE OF THE LIABILITIES OF THE PARTIES. (Ch. 5 was made or to be performed.^" If the transfer is good accord- ing to the law governing the contract of the acceptor or maker the transferee may maintain suit against the acceptor or maker, but otherwise not. By the place where the contract is made is meant, as between the original parties, the place where it is delivered or issued, not where it is dated; ^^° but the place of date is prima facie the place of is- sue, and as against a bona fide purchaser the instrument will be deemed to have been made at that place.^" Same — Damages. The rate of interest payable as damages ^'^ is determined by the law of the place of performance: in case of the acceptor or maker 104 Robertson v. Burdekin, 1 Ross, Lead. Gas. 812; TRIMBEY v. VIGNIEE, 1 Bing. N. C. 151; LEBBL v. TUCKER, L. R. 3 Q. B. 77; BRADLAUGH v. DB RIN, L. R. 5 C. P. 473. "It has been held that on a bill drawn and payable in England, but Indorsed In France in form invalid there, but valid by English law, the Indorsee might maintain suit in England against the acceptor, whose contract is to be interpreted by English law; but as between the indorsee and the indorser, such indorsement would confer no right of action, being governed by the law of France, the lex loci contractus. In BRADLAUOH v. DB RIN the exchequer chamber held that in * * * LEBEL v. TUCKER and TRIMBEY V. VIG-NIER the French law had been mistaken, and that as regards the point raised— i. e., the right of an indorsee under a blank indorsement to sue in his own name— there was no conflict between the laws of France and England, but the principles laid down in those cases are not questioned." Benj. Chalm. Bills & N. 71, note. These three cases are severely criticised by Prof. Ames, who maintains that upon principle the transfer of a bill is governed by the law of the place where it is at the time of transfer. 2 Ames, Gas. Bills & N. 807, SOS. See Daniel, Neg. Inst. §§ 903-907. The Bills of Exchange Act (section 72, subd. 2) provides that the "interpretation of the drawing, indorsement, ac- ceptance, or acceptance supra protest of a bill is determined by the law of the place where such contract is made. Provided that where an inland bill is indorsed in a foreign country the indorsement shall as regards the payor be in- terpreted according to the law of the United Kingdom." 155 COOK V. MOFFAT, 5 How. 295; Lawrence v. Bassett, 5 Allen (Mass.) 140; Bell v. Packard, 69 Me. 105; Freese v. Brownell, 35 N. J. Law, 286; Gay V. Rainey, 89 111. 221; Briggs v. Latham, 36 Kan. 255, 13 Pac. 393. 166 Snaith v. Mingay, 1 Maule & S. 87; LENNIG v. RALSTON, 23 Pa. St. 139. 157 As to the distinction between interest by way of damages and stipulated interest, ante, p. 172, note 83. §§ 83a-83b) conflict of laws. 189 where the instrument is payable; ^"^ in case of the drawer and in- dorser, where the contract of indeninity is to be performed, — that is, at the place of drawing or indorsing. Thus where F. in California drew bills on B. in Washington, D. C, which were not accepted, and the payee brought suit in England against the drawer, and it ap- peared that the California rate of interest was 25 per cent., and the Washington rate 6 per cent., it was held that the plaintiff was en- titled to recover interest at the higher rate.^^° It would logically follow that in case of dishonor the drawer or indorser upon receiv- ing due notice would be liable to pay in performance of his contract of indemnity whatever interest had then accrued against the ac- ceptor or maker according to the law of the place of dishonor; but that if the drawer or indorser failed upon receiving notice to make such payment he would thereafter become liable to pay interest by way of damages for the breach of his contract at the rate in force in the place where he was liable to perform it.^*" The cases, how- €ver, generally fail to take the distinction between the interest pay- able by the drawer or indorser in performance and the interest pay- able by him as damages upon breach, and lay down the rule broadly that the rate of interest payable by the drawer is determined by the law of the place where the bill was drawn, and of the indorser by the law of the place where the instrument was indorsed.^"^ The same rules apply where there is a conflict of laws as to the damages payable in lieu of re-exchange.^"'' 168 Cooper V. Earl of "Waldegrave, 2 Beav. 282; Scofield v. Day, 20 Johns. or note. If any part of a contract is void for illegality, all of it is •void. The courts will not unravel and separate considerations which are good and considerations which are illegal, and allow recovery for those which are good. In this, illegal considerations which avoid the instrument differ from instruments which cannot be enforced ^because of partial lack or failure of consideration, the latter being, ■as has already been said, good pro tanto. And this is so because it is impossible to say whether the legal or illegal portion of the con- sideration most affected the mind of the maker or acceptor in making 2iis promise. The law will not permit him thus to seek to evade its provisions and yet stand upon and recover for the valid part of the original consideration. Negotiable instruments are not contracts «onsisting of several parts based on several transactions. They are mot of the kind called in ordinary contract law "severable." As to them the general rule of contracts that, where the promises and considerations are severable, an illegal consideration is a partial de- fense, does not apply. But on the contrary, the undoubted rule is . .that any of the foregoing kinds of illegal considerations, whether •total or partial, are defenses to the recovery upon any part of the Instrument between immediate parties. Same — Knowledge of Consideration — Intention. It must be admitted that comparatively few cases directly involv- ing bills and notes are to be found in examining the question of the Tknowledge of a party of the illegality of a consideration. But there «eems to be no reason why the well-settled rules of contract should mot be applied to the case of immediate parties to negotiable instru- unents. The combinations of circumstances to which these rules «of contract apply are where the consideration consists of some il- Uegal act, which it is the mutual intention of the parties to perform; -where it consists of some act legal in itself, but mutually intended to further some illegal purpose; where one party intends an illegal act, but the other is innocent of any knowledge concerning it; and, lastly, where one party intends an illegal act and the other party 3cnows of it, but is innocent of any participation in it. In the case of the consideration consisting of some illegal act In which both of the parties participate, courts will not enforce the instrument, because § 115) REAL AND PERSONAL DEFENSES. 293^ courts cannot enforce a violation of law.''^" This rule is broad, enough to cover the case of a legal consideration intended to further an illegal intent, because the parties may not use a legal act to cover a wrong, provided that their intention to commit a wrong was mutual,^*^ and the loan of money evidenced by the bill or note was in furtherance of the parties' unlawful purpose."^ But, on the other hand, if the contract was innocent in itself, and if the party enforcing the bill or note was ignorant of the illegal intention of the other party, he is entitled to its full benefits,^ *^ and the courts- will not shield the other party, because he alone has attempted to- further some illegal purpose of his own. But the purpose and con- sideration of the instrument must be innocent and legal, for if illegal, although its illegality was unknown to the prosecuting party, it is unenforceable, for the courts, from their very constitution, can- not enforce negotiable instruments upon an illegal consideration,, and the ignorance of the party himself of the fact that that consid- eration was in violation of the law does not excuse him.^'* Where,- however, the instrument is founded upon a consideration legal ini itself, but intended by one party to further an illegal purpose, and the other party knows of it, but takes no part in this illegal pur- pose, the law is much more diflflcult of interpretation. It is the opin- ion of writers "*' and courts ^^° of great authority that no recovery can be had by a party whose rights are thus tainted with his knowl- edge of its illegal purpose. But with all deference to the opinions of such distinguished jurists it is submitted that they are not founded upon the better reason. This would seem to be that as^ long as the transaction is a fair and honest one between the two- 280 McKinnell v. Robinson, 3 Mees. & W. 434; Cutler v. Welcb, 43 N. H^ 497; Mordecal v. Dawkins, 9 Rich. Law, 262. 281 Blont V. Proctor, 5 Blackf. 265; Cannan v. Bryce, 3 Barn. & Aid. 179. 282 Ernst V. Crosby, 140 N. Y. 364, 35 N. E. 603; Tyler v. Carlisle, 79 Me.. 210, 9 Atl. 356; Ruckman v. Bryan, 3 Denio, 340; Cutler v. Welch, 43 N. H_ 407; Wright v. Crabbs, 78 Ind. 487. 28 3 pixley V. Boynton, 79 111. 351; Quirk v. Thomas, 6 Mich. 76. 284 Pol. Cont. 322; Anson, Cont. 192; Favor v. Philbrick, 7 N. H. 326. 2 85 Daniel, Neg. Inst. § 200. = se Hubbell v. Flint, 13 Gray, 277; Hanauer v. Doane, 12 Wall. 342; Tatum- T. Kelley, 25 Ark. 209; Graves v. Johnson, 156 Mass. 211, 30 N. B. 818. 294 DEFENSES. (Ch. 7 parties before the court, and one which they had a perfect right to enter into, the subsequent illegal acts of one of them should not invalidate the contract, as to the other, although that other knew of them, unless he, too, directly or indirectly, participated in them. Wrongful intent is not punishable by law when nothing is done to ' carry that intent into effect, and much less bare knowledge of such an intent, without any participation in it. The subsequent acts of the -other party are something with which he has no concern."*' And the true rule would seem to be that, unless there was evidence of some act of the party prosecuting the instrument showing that he was a particeps criminis to the illegal acts of the other,, the bare knowledge of the holder of the other's intention to perpetrate some illegal act would not be a defense to the instrument as against him. Same — As Agamst Bona Fide Holder. A consideration illegal because it is evil or immoral or against public policy is not a ground of defense to an action brought by a purchaser of the instrument for value and without notice. The reasons we have already given in this section as those which have governed courts in dealing with considerations made illegal by stat- ute prevail in these cases also. It is therefore needless to repeat them."*' 116. DISCHARGE OF THE INSTRUMENT.— A nego- tiable instrument may be discharged by payment, or by act of the holder, or by operation of law. 117. When the instrument has been discharged, it ceases to be negotiable. "Discharge" of an instrument means the extinguishment of all rights of action thereon. Discharge is usually effected by payment by the principal debtor at maturity, by the principal debtor becom- ing the holder at maturity, by renunciation or release by the holder 2 87 Kreiss v. Seligman, 8 Barb. 439; Tracy v. Talmage, 14 N. T. 162; Faik- ney v. Beynous, 4 Burrows, 2069; Holman v. Johnson, Cowp. 341; PeUecat v. Angell, 2 Cromp., M. & R. 311. See TifEany, Sales, pp. 134r-136. 288 Tied. Com. Paper, § 178; Rana. Com. Paper, § 1887; Daniel, Neg. Inst. % 198; Edw. Bills & N. § 516. § 118) REAL AND PERSONAL DEFENSES. 295 at maturity, and by cancellation.* It may also be discharged by alteration.*'" In some cases, though rarely, the instrument is dis charged by operation of law. The instrument, when discharged, is no longer negotiable; and even when transferred to a purchaser without notice cannot be enforced, because it is merely a right to enforce money, which, upon discharge of the instrument, no longer exists. Discharge of the instrument must be distinguished from discharge of a party thereto. 118. PAYMENT.— A bill or note is discliarged by pay- ment at or after maturity by or on behalf of tbe accept- or or maker to the holder, in good faith and -without notice that his title is defective. Payment. Payment in due course by the principal debtor — ^that is, by the ac- ceptor or maker — discharges the instrument, because it is a per- formance of the contract according to its terms by the person pri- marily liable.*"" Payment by a co-maker or co-acceptor has the •See Neg. Inst. L. §§ 200-206. Prof. Ames says that, if title has vested in the payee, "nothing short of a physical destruction, cancellation, or alteration of the instrument, or its retransfer to the acceptor or maker (or the drawer or drawee, if the bill was not accepted), can afterwards extinguish it." 2 Ames, Gas. Bills & N. 821. This has reference to extinguishment at law, as distinguished from equity. Yet although the instrument be not retransferred, and hence is not extinguished at law, any transferee after maturity acquires the legal title subject to equities of the acceptor or maker acquired by him at or after maturity, and hence the acceptor or maker is for all practical purposes in the same position as if the instrument were extinguished at law. See 2 Ames, Gas. Bills & N. 824. This distinction between extinguishment at law and in equity is not generally taken in the cases or the text-books, and the rule is broadly stated that payment or renunciation at or after maturity, with or without retransfer, discharges the instrument. 289 Ante, p. — . 280 Elsam V. Denny, 15 G. B. 87; BARTETJM V. CADDY, 8 Law J. Q. B. 31; BaUard v. Greenbush, 24 Me. 336; Suydam v. Westfall, 2 Denio, 205; Gordon V. Wansey, 21 Cal. 77; Gardner v. Maynard, 7 Allen, 456. On this, see SWOPE V. BOSS, 40 Pa. St. 186, which holds that, since the acceptor of a biU is really the debtor, the drawer and indorser being merely siureties, the debt is extinguished by its payment by the acceptor; and, save where the acceptance 296 DEFENSES. (Ch. 7 same effect.^"^ Payment by an accommodated party, although he be drawer or indorser, is also in effect a discharge, because, as be- tween himself and the accommodation accej)tor or maker, he is primarily liable.^^^ Payment by the accommodation acceptor or maker also discharges the instrument,^"' although the acceptor or maker paying under such circumstances could compel the accom- modated party to refund the amount paid. Likewise the instru- ment is discharged if, when it matures, the acceptor or maker is or becomes the holder,^'* since the right and liability are coinci- dent in one and the same person. In all such cases payment is a defense, even as against subsequent purchasers without notice, for any purchaser thereafter would necessarily acquire the instrument after maturity, and hence subject to defenses.^ "^ In order that pay- ment or coincidence of right and liability should operate as a dis- charge, it is essential that the instrument should have matured; for an acceptor or maker may acquire it before maturity, as pur- chaser, and may then further negotiate it.^°^ Moreover, although the acceptor or maker intends the transaction to take effect as pay- ment and discharge, such payment would be no defense against a purchaser for value without notice; as in case the acceptor, after paying the money to the holder, had allowed him to retain the in- strument, and he had negotiated it; or in case the acceptor, after thus taking up a bill payable to bearer, had, before it matured, lost it, and it had come into the hands of an innocent purchaser.^" was supra protest, no right of action remains against such drawer or indorser. See Neg. Inst. L. § 200. Cf. sections 77, 90, 148. 231 HARMER v. STEELE, 4 Exch. 1; Cox v. Hodge, 7 Blackf. (Ind.) 146; Swem V. Newell, 19 Colo. 397, 35 Pac. 734. 292 COOK v. LISTER, 32 Law J. C. P. 127; Lazarus v. Cowle, 3 Q. B. 459; Woods V. Woods, 127 Mass. 141; Blenn v. Lyford, 70 Me. 149. 2 03 HARMER V. STEELE, 4 Exch. 1; BARTRUM v. CADDY, 9 Adol. & B. 275. 2 94 HARMER V. STEELE, 4 Exch. 1; Stewart v. Hidden, 13 Minn. 43 (Gil. 29); Chalm. Bills & N. art. 238. 205 GARDEN V. MAYNARD, 7 Allen (Mass.) 456. Ante, p. 295. 206 ATTENBOROUGH v. MACKENZIE, 25 Law J. Exch. 244; Swope v, Ross, 40 Pa. St. 186; Mishler v. Reed, 76 Pa. St. 76. 297 BURBRIDGE v. MANNERS, 3 Camp. 193. It was held in this case that, although a. bill cannot be reissued after it has arrived at maturity and been § IIS) REAL AXD PKHSOXAL DEFENSES. 297 It is to be observed that an acceptor or maker purchasing before maturity is not a purchaser in due course; and, therefore, although the paper be transferable by delivery, he acquires only the title of his transferrer, and hence, unlike an ordinary purchaser, he could not acquire title from a finder or a thief.^'* Again, in order that payment should operate as a discharge, it must be made to the holder, and in good faith. ^°° The acceptor or maker must occupy, in this respect, substantially the position of a purchaser for value without notice. If paper be transferable by indorsement, payment can be made only to the payee named, or to one holding under his indorsement.^"" Payment under a forged indorsement, for exam- ple, would be no discharge.'"^ But, if the paper be transferable by delivery, payment in good faith to the bearer would be a dis- charge, whatever the infirmity of his title.^"^ Payment by one secondarily liable, on the other hand, although at or after maturity, is not a discharge of the instrument. The draw'jr and indorser are liable to subsequent parties, but prior par- paid, yet if paid, and afterwards indorsed before it becomes due, it is a valid security in the hands of a bona fide indorsee. In the case of Morley v. Cul- verwell, 7 Mees. & W. 174, it was shown that the drawer of a bill of exchange, before it became due, agreed with the acceptor that, on his giving a certain mortgage security for the amount, he, the drawer, would deliver the bill up to him, and the acceptor accordingly executed the mortgage and received back the bill uncanceled. It was held that the drawer was liable on the bill to a party to whom the acceptor afterwards indorsed it for value before it came due; and that the plea that the bill was paid by the acceptor before it came due, and afterwards reissued by him without a new stamp, could be supported only by proof of actual payment at maturity in cash, and not by evidence of an arrangement between the drawer and acceptor, whereby the bill was treated as being satisfied. WHEELER v. GUILD, 20 Pick. (Mass.) 545. 2»8 DE SILVA V. FULLEB, 1 Chit. Bills, p. 392; 2 Ames, Cas. Bills & N. 823. 299 See Neg. Inst. L. § 148. Cf. sections 314, 315, as to payment of bills drawn in sets. 300 Doubleday v. Kress, 50 N. Y. 410. 301 SMITH V. SHEPAED, Chitty, Bills (10th Ed.) 180, note. 302 ANONYMOUS, Style. 366; Eastman v. Plumer, 32 N. H. 238; Bank of U. S. V. U. S., 2 How. 711; Greve v. Schweitzer, 36 Wis. 554; Chappelear V. Martin, 45 Ohio St. 132, 12 N. E. 448; STODDARD v. BURTON, 41 Iowa 582. 298 DEFENSES. (Ch. 7 ties are liable to them. Payment by the drawer or indorser, there fore, unless he be an accommodated party, does not discharge the instrument, but operates as against prior parties by way of pur- chase.^"^ The drawer or indorser is remitted to his former posi- tion, and may enforce the instrument against prior parties, or he may again indorse and transfer it; with this exception, however, so far as concerns the drawer: that, if the instrument be payable to the order of a third person, the drawer cannot, of course, upon making payment, again indorse and transfer.'"* Payment by the drawer or indorser does not inure to the benefit of the acceptor or maker; and, therefore, if the drawer or indorser pays to the holder part of the amount due, or even the whole amount, and the holder retains possession of the instrument, he may recover from the ac- ceptor or maker the whole amount. He would then hold the amount recovered as trustee for the drawer or acceptor, or as trustee pro tanto in case partial payment had been made by them.'"" It is well, perhaps, to append to this statement a few scattered principles usually added by the text writers to their remarks upon this branch of the subject. It is advisable for any party making payment to assure himself that there has been due presentment, protest, and notice, because in default of these he could not recover against the antecedent indorsers or the drawer under liability to him. It is also advisable for him to look to the identity of the holder, and that he traces a legal title to the instrument. And lastly that he take the instrument itself into his possession, because 80S Aa to Indorser, West Boston Sav. Bank v. Thompson, 124 Mass. 506; Howe Mach. Co. v. Hadden, 8 Biss. 208, Fed. Cas. No. 6,785; Hayling v. Mull- hall, 2 W. Bl. 1235; Morgan v. Eeintzel, 7 Cranch, 273. As to drawer, CALLOW v. LAWRENCE, 3 Maule & S. 95; Benj. Chalm. art. 234; Story, Bills, § 422; Rand. Com. Paper, § 427. In CALLOW v. LAWRENCE the drawer of a bill pay- able to his own order, and indorsed by him to T., and by T. to B., upon the bill being dishonored, paid the amount to B., who struck out his own and T.'s indorsement, and returned it to the drawer, and the drawer afterwards passed it to the plaintiff. It was held that the plaintiff might recover against the acceptor. 30 4 Beck V. Robley, 1 H. Bl. 89, note; GARDNER v. MAYNARD, 7 Allen (Mass.) 599. See Neg. Inst. L. § 202. 305 JONES v. BROADHURST, 9 C. B. 173; MADISON SQUARE BANK T. PIERCE, 137 N. Y. 444, 33 N. E. 557. ■§ 118) KEAL AND PEKSONAL DEFENSES. 299 -that is prima facie evidence of payment, and also that lie strengthen this evidence by taking a separate voucher as a receipt. "'° This last ■course is especially desirable in case of an indorser making pay- ment, because, in his action against prior parties, possession of the instrument is in some cases not sufficient evidence of its payment by him, and it is necessary for him to show the fact of payment by himself aflflrmatively. For this purpose a receipt, while not con- clusive, is yet very strong proof. '"^ The person to whom payment must be made is the legal holder or his duly-authorized agent. This legal ownership depends upon two principles. If the instru- ment is payable to bearer or indorsed in blank, its possession is presumptive evidence of right to collect it.'"* But if it is made payable to order or indorsed to order, the order of the payee is nec- essary to confer title and right to collect, and mere possession is not presumptive evidence of title.' °° In such cases, where it is lawfully in the holder's possession, there must be shown, in addi- tion, some evidence of agency or legal right to receive the money, as that the holder is the assignee of a bankrupt, or the representa- tive of the dead owner, or the guasdian of an infant.'^" The sub- ject of payment by negotiable instrument has already been dis- cussed.'^^ Same — Payment or Purchase. The question sometimes arises whether a transaction amounts to a payment and discharge or to a purchase. For example, while payment in due course by the principal debtor necessarily dis- charges the instrument, he might pay over the money as agent for another, who intended to become a purchaser of the instrument; and, if the instrument were indorsed to such purchaser, or if, being 508 Daniel, Neg. Inst. c. 38, § 2; Tied. Com. Paper, c. 19, §§ 372, 373. 3»7 Mendez v. Carreroon, 1 Ld. Eaym. 742. SOS Mauran v. Lamb, 7 Cow. 174; Merritt v. Cole, 14 Hun, 324; Bachellor T. Priest, 12 Pick. 406; Bank of U. S. v. U. S., 2 How. 711. 309 Doubleday v. Kress, 50 N. T. 410; PORTER v. CUSHMAN, 19 lU. 572; Pease v. Warren, 29 Mich. 9. 310 Bayley, Bills (2d Am. Ed.) 320; 2 Pars. Notes & B. 211; Daniel, Neg. Inst. § 1230; Tied. Com. Paper, § 374. "1 Ante, p. 19. 300 DEFENSES. (Ch. 7 payable to bearer, it were delivered to the person paying over the money as agent for the purchaser, the transaction would take effect as a purchase. Whether such a transaction is a payment or a pur- chase depends upon the intention of the parties. In the case sup- posed, if the instrument were transferable by delivery, it might have been the intention of the holder simply to receive payment, and to deliver up the instrument to the person discharging it, or it might have been his intention to make a sale of the instrument. So far as the acts of the parties go, the transaction might take effect either as payment or as purchase. But the seller even of paper transferable by delivery incurs liability by virtue of his im- plied warranties, and, in order that the transaction may take effect as a sale, there must be evidence, either by his words or his acts, of his intention to sell. In the case supposed, since his acts would not necessarily indicate any intention to assume such liability, the transaction would take effect as payment and dischargie.^^^ So if a stranger pays the amount due to the holder, and he delivers over the instrument, the transaction will take effect as payment, unless- the holder has in some way evidenced his intention to transfer the instrument to the payor as purchaser.'^' If the facts are in dis- pute, the question is for the jury, to be determined according to the intention of the parties as evidenced by their words and acts."* Same — Payment Supra Protest. Ordinarily one who, without request, pays the debt of another, acquires thereby .no right of reimbursement against the debtor. T^J the law merchant, however, an exception exists in the case of what is known as "payment supra protest," or "for honor," introduced in. aid of the credit and circulation of bills of exchange, but not ex- 312 LANCET V. CLARK, 64 N. Y. 209; Burr v. Smith, 21 Barb. 262; East- man V. Plumer, 32 N. H. 238; Greening v. Patten, 51 Wis. 150, 8 N. W. 107. 3JS Burr v. Smith, supra. Where notes were surrendered hy collection bank, uncanceled, to one nuder no obligation to pay, who stated that he wished ta purcliase, and not to pay, them, and who gave full value, not knowlDg that the bank held them for collection, the transaction was a purchase. Cussen v. Brandt, 97 Va. 1, 32 S. E. 791. 314 Kyne v. Erskine, 7 Mo. App. 591; Dougherty v. Deeney, 45 Iowa, 443; Swope V. Leffingwell, 72 Mo. 348. § 118) EEAL AND PERSONAL DEFENSES. 301 tended to promissory notes. Where a bill has been protested for non-payment, any party, whether drawer, drawee, payee, or indorser, and also a mere stranger, may pay it, without request, for the honor of any party or parties. In case of such payment the payor has a right of reimbursement against the party for whose honor he inter- venes and against all prior parties.''^ Subsequent parties are thereby discharged. His position is the same in effect as if he were the indorsee of the person for whose honor he intervened, and had himself paid the bill to the holder. If he pays for honor generally, — that is, for the honor of all parties to the bill, — ^he may recover against al! parties. If he pays for the honor of the acceptor, he may sue him alone. If he pays for the honor of the drawer, he may sue the drawer and the acceptor. The cases are in conflict, how- ever, as to whether he may in such case recover from an accommo- dation acceptor. That he may so recover has been finally estab- lished in England,'^^ upon the ground that "the person who takes up a bill supra protest for the honor of a particular party succeeds to the title of the person from whom, not for whom, he receives it, and has all the title of such person to sue upon it, except that he discharges all the parties to the bill subsequent to the one for whose honor he takes it up, and that he cannot indorse it over." ^^' The contrary doctrine is maintained by Mr. Daniel upon the ground that he succeeds as against parties anterior to the one for whose honor he pays to the rights of that party. ''* The payment must be preceded or accompanied by a declaration for whose honor he pays, to be made in the presence of a notary public, and the decla- ration must be recorded by the notary in the protest or in a sepa- rate instrument. The payor must also notify the party for whose honor he intervenes.*^' 315 MERTBNS V. WINNINGTON, 1 Esp. 113; In re Overend, L. R. 6 Eq. 344. 316 In re Overend (overruling Ex parte LAMBERT, 13 Ves. 179), supra; Ex parte Wackerbartli, 5 Ves. 574. 3 17- In re Overend, supra, per Sir R. Malins, V. C. 318 Daniel, Neg. Inst. § 1255. See, also, McDowell v. Cook, 14 Miss. 420; Gazzam v. Armstrong, 3 Dana (Ky.) 554. It would seem that the English rule is adopted by Neg. Inst. L. § 304, but this is perhaps not free from doubt. 318 As to payment supra protest, see, generally, Daniel, Neg. Inst. §§ 1254- 1258; Eand. Com. Paper, §§ 1194-1197, 1437; Neg. Inst. L. §§ 300-306. 302 DEFENSES. (Ch. 7 119. DISCHARGE BY ACT OF HOLDER.— The holder may discharge the iustruxaent by (a) Renunciation or release at or after maturity; (b) Cancellation. The holder may waive Ms right to payment, and if, at or after ma- turity, he absolutely and unconditionally renounces or releases his right against the acceptor or maker, he thereby discharges the in- strument.^'"' A renunciation before maturity, like payment before maturity, does not affect the rights of innocent purchasers.'" The Negotiable Instruments Law provides that a renunciation must be in writing, unless the instrument is delivered up to the person pri- marily liable thereon.'^ ^ The requirement that the renunciation must be in writing changes the law, for at common law the renun- ciation may be by way of gift evidenced in any way.'^° So, too, the holder may waive his right to payment by an intentional cancella- tion of the instrument. If the cancellation be made unintention- ally, or under a mistake, it is inoperative; but the burden lies upon the party who alleges that it was unintentional to establish the fact.'^* Cancellation may be made by destruction of the instru- ment,^^' and it may doubtless be made in any other way that evi- S20 POSTER v. DAWBER, 6 Exch. 839. 321 DOD v. EDWARDS, 2 Car. & P. 602 (general release); MORLET v. CULVBRWELL, 7 Mees. & W. 174. 3 22 Section 203. 823 FOSTER v. DAWBER, 6 Exch., 839, 20 Law J. Exch. 385, per Willes, J. This is an exception to the common-law rule that simple contracts cannot be discharged after breach except by deed or for consideration. Byles, Bills (Wood's Ed.) *199. But many cases have refused to recognize such an excep- tion, holding that the renunciation may be by way of gift, but that to consti- tute a gift there must be delivery with intention of passing title. Bragg v. Danielson, 141 Mass. 195, 4 N. E. 622; SLADE v. MUTRIB, 156 Mass. 19, 30 N. E. 168; Henderson v. Henderson, 21 Mo. 379; Benj. Chalm. BlUs & N. art. 239, and notes; 4 Am. & Eng. Bnc. Law (2d Ed.) 503. Of course, renunciation accompanied by surrender is sufficient. Sherman v. Sherman, 3 Ind. 337; Hale V. Rice, 124 Mass. 292; Stewart v. Hidden, 13 Minn. 43 (Gil. 29). 3 24 See Neg. Inst. L. §§ 200, 201. 325 Blade V. Noland, 12 Wend. (N. Y.) 173; Larkin v. Haidenbrook, 90 N. Y. 333. § 119) REAL AND PERSONAL DEFENSES. 305 dences upon the face of the instrument that it is canceled, as by obliteration, writing, stamping, or tearing. It may be made before maturity; but, in order that it may be a defense in such case against a bona fide purchaser for value, it must be of such a character as to carry notice to him on the face of the instrument.^ ^° Bischargely Operation of Law. The instrument is discharged in certain cases by operation of law, irrespective of the intention of the parties.^ ^' For example, when the holder appoints the acceptor or maker his executor, though this common-law rule is generally abolished by statute; ^^* or where the payee of a note, being a woman, intermarries with the maker, the note is discharged, and cannot be revived by the husband's 826 In INGHAM v. PRIMROSE, 7 C. B. (N. S.) 82, defendant accepted a bill,, and delivered it to M to get it discounted. M, failing to obtain a disconnt, returned it to defendant, who, in M's presence, tore it in half, with the inten- tion of canceling it, and threw It away in the street. M picked it up, and afterwards pasted the pieces together, and passed It to a bona fide purchaser, who indorsed it to plaintiff. A verdict was directed for defendant, with leave to plaintiff to move to enter verdict for him, the court to be at liberty to draw inferences of fact. It was held that the bill was good in the hands of a bona fide purchaser, and that it was for the jury whether the bill on its face in- dicated that it had been canceled; and the court, performing the function of a jury under the rule,' found that the purchaser was not so affected with notice by the appearance of the bill. Defendant's treatment of the bill was clearly a cancellation, but It seems that the appearance of the bill was such as to- affect him with notice, even if the defense were personal. Cf. Scholey v. Rams- bottom, 2 Camp. 485. In BAXENDALE v. BENNETT, 3 Q. B. Div. 525, Brett, B., said that in INGHAM v. PRIMROSE the acceptor was held liable "be- cause, said the court, although he did intend to cancel it, yet he did not cancel it. It seems to me difficult to approve that case, and the correct mode of dealing with it is to say we do not agree with it." If a bill or note were can- celed by obliteration or stamping, and the cancellation marks were subse- quently fraudulently erased, so that the question of notice from the face of the instrument did not arise, it is clear that the defense of cancellation would be good against a bona fide purchaser. District of Columbia v. Cornell, 130 U. S. 655, 9 Sup. Ct 694. The English Bills of Exchange Act provides (section 6S): "Where a bill is intentionally canceled by the holder or his agent, and. the cancellation is apparent thereon, the bill is discharged." 827 FREAKLEY v. FOX, 9 Barn. & C. 130. S2S Daniel, Neg. Inst. §§ 1283, 1285. 304 DEFENSES. (Ch. 7 death; '^° and where a note made by a single woman, who after- wards marries, is transferred to her husband, the note is discharged, and cannot be revived by a retransfer by the husband to the payee.''" These rules are doubtless affected in many states by leg- islation concerning the property rights of married women. Other instances of discharge commonly cited are discharge of the debtor by an insolvent or bankruptcy act, and merger of the right of ac- tion against a party to the instrument in a judgment against him. These discharges, however, are not discharges of the instrument. Nor does the discharge of a bankrupt release a party secondarily liable. 120-121. DISCHARGE OF PARTIES SECONDARILY LIABLE. — Where the holder of a negotiable instrument does any act which will impair any right of the drawer or of any indorser against other parties to the instrument liable to him, it operates as a discharge of the obhgation of the draw^er or indorser. This does not apply if, subse- quent to such discharge, a purchaser for value without notice before maturity acquires the instrument. ' In addition to the methods of discharge extinguishing the instru- ment itself as an obligation must be mentioned the methods of dis- charge extinguishing the several contracts of the drawer and in- dorsers in their character of a surety thereupon by operation of the general rule of suretyship applied to the law of negotiable bills and notes.'" The principle underlying this method is that if the holder of a bill or note does any act which will impair any right of the drawer or indorsers against other parties to the instrument liable to him, the drawer or indorser will be discharged. The reason for this rule is the promise implied in law, that, if either the drawer or indorser pays the instrument, parties liable to him will reimburse him for such payment, and that to effect such end upon payment the S29 ABBOTT V. WINCHESTER, 105 Mass. 115. 33 CHAPMAN V. KELL0GM3, 102 Mass. 240. 831 See Neg. Inst. L. § 201. §§ 120-121) REAL AND PERSONAL DEFEXSES. 303 drawer or indorser is entitled to demand its possession from the creditor, and to be subrogated to all remedies possessed by him against the prior parties thereon, unimpaired by any act of such creditor, — a promise which the creditor also impliedly ratifies in making his contract with the indorser.^^^ If the creditor violates any part of this contract, this Tiolation releases the indorser. From this principle flow several principles which are of very common ap- plication. They are as follows: (1) Whatever discharges the acceptor or maker discharges the drawer or indorsers, because the ultimate remedies of the drawer or indorsers are against these parties, and releasing them extin- guishes the obligation which in turn they, as sureties, undertook should be performed.^^' (2) Any act of the holder which discharges a prior indorser dis- charges subsequent ones, because such prior indorser guarantied subsequent indorsers that he would pay if the maker or acceptor did not. As far as they were concerned, he stood in the position of a principal upon the contract, and the release of their principal also releases them. A discharge of a prior indorser therefore is like a discharge of the maker or acceptor, and the holder violates this contract with them.''* 3 32 SHUTTS T. PINGAR, 100 N. Y. 539, 3 N. E. 588; Goodyear v. Watson, 14 Barb. 481; Clason v. Morris, 10 Johns. 524. A valid tender, like payment, dis- charges parties secondarily liable. Spurgeon v. Smitha, 114 Ind. 453, 17 N. E. 105; Joslyn v. Eastman, 46 Vt. 258; Neg. Inst. L. § 201. A release of the prin- cipal debtor with an express reservation of the holder's right of recourse against lie party secondarily liable does not discharge the latter, his rights against the principal debtor being reserved by implication. STEWART v. EDEN, 2 Gaines (N. T.) 121; ROCKVILLE NAT. BANK v. HOLT, 58 Conn. 526, 20 Atl. C69; Daniel, Neg. Inst. § 1310; Neg. Inst. L. § 201. 333 Sargent v. Appleton, 6 Mass. 85; Couch v. Waring, 9 Conn. 261; Gunnis v. Weigley, 114 Pa. St. 194, 6 Atl. 465. 33*Newcomb v. Raynor, 21 Wend. 108. In this case it was held by Nel- son, C. J., that, "as between the first and subsequent indorsers, the former must be regarded in the light of principal. He stands behind them upon the paper, and is bound to take it up, in case of default of the maker. A dis- charge of him, therefore, by the holder (regarding the relative position of the parties), on general principles, operates to release them." SHUTTS v. FINGAR, 100 N. Y. 539, 3 N. E. 588. NEG.BILLS.— 20 306 DEFENSES. (Ch. 7 (3) If the holder releases securities held by him as collateral to claims against parties against whom the indorser would have re- course, it releases the indorser pro tanto. This is because the surety, upon payment of the claim against his principal, has a right to be put in the place of the creditor. He has a right to enforce every means of payment against the principal debtor the creditor had. These securities were a means of such enforcement, and he has a right to them. Every remedy the creditor had, upon payment by the surety, belongs to him. And if the creditor impairs the rights of the surety in this respect, he breaks his contract with him and releases him*^^^ (4) Where the holder of the instrument upon a valid consideration makes a definite promise to extend the time or forbear suit against a party liable to a drawer or indorser, this discharges the drawer or indorser. The reasons for this rule are that it creates a contract different from the one the surety guarantied, and that it prevents the surety from protecting himself by paying forthwith the princi- pal's debt and immediately bringing suit against him.'^" But it S3 5 Goodyear v. Watson, 14 Barb. 481; Clason v. Morris, 10 Johns. 539; Craythorne v. Swinburne, 14 Ves. 169; Mathews v. Ailiin, 1 N. T. 595. 330 Siebeneeli v. Anchor Sav. Bank, 111 Pa. St. 187, 2 Atl. 485; Batavian Banl£ V. McDonald, 77 Wis. 486, 46 N. W. 902; Stevens v. Oaks, 58 Mich. 343, 25 N. W. 309; English v. Darley, 2 Bos. & P. 61. In the case of Okie v. Spencer, 2 Whart. 253, the holder of a note took a check from the maker, dated six days subsequent to the maturity of the note, and with the understanding that the check was to be in full satisfacion of such note, if paid. It was held that this constituted an extension to the maker, and discharged an indorser. In the case of Tieman v. Woodruff, 5 McLean, 350, Fed. Gas. No. 14,028, a bank- rupt obtained for a valuable consideration, from a creditor, two months' time, during which the creditor's right to bring suit was suspended. It was claimed by the indorser that this operated to discharge him from his indorsement, but it was held that since, by the bankrupt law, the bankrupt was discharged of all liability, and since the sole remedy of the indorser lay in his presentation of his future liability against the bankrupt's estate, his right was not preju- diced by the extension of time, and there was no discharge. In LAXTON v. PEAT, 2 Camp. 185, it was held that if the Indorsee of a bill of exchange, hav- ing notice that it was accepted without consideration, receive part payment from the drawer, and give him time to pay the residue, he thereby discharges the acceptor. In the case of Pannell v. M'Mechen. 4 Har. & J. (Md.) 474, "the drawer and indorser of a note, being unable to meet their engagements, §§120-121) REAL AND PERSONAL DEFENSES. SCT must be a new contract which is created and substituted for the old one. It must be with the principal himself,^'' and must have a valid consideration.'"' It must be absolute,''' and not indefinite.'** And it must have all other requisites necessary to create a con- tract. The surety must not assent to it,'*^ and it must be with- proposed to compound with their creditors, and executed a deed of trust to trustees, of whom the defendant was one, to be applied to the payment of debts in the order directed, thereby securing to the defendant the payment of the note in question, on the terms that such creditors as should become parties to the deed should have an interest in the property conveyed. The, deed contained a clause releasing the drawer and first indorser, on the ex- press terms that the release should extend to no other terms. The plaintiff and defendant assented, and signed the Instrument. * * • Therefore * • • the court are clearly of the opinion that the release in this case cannot discharge the defendant." (Per Johnson, J.) In Callott v. Haigh. S Camp. 281, it was held that the drawer of an accommodation bill was not discharged by time being given the acceptor, and in FENTUM v. POCOCK, 5 Taunt. 192, it was held that, if the holder of a bill accepted for the accom- modation of the drawer takes a cognovit from the drawer for payment by installments, he does not thereby discharge the acceptor, whether the holder knew at the time of taking the bill that it was an accommodation bill or not. As to the effect of release, where the paper was made or ac- cepted for accommodation, see Daniel, Neg. Inst §§ 1332a-1338a; Benj. Chalm. Bills & N. p. 259. 337 Harbert v. Dumont, 3 Port. (Ind.) 346. 338 McLemore v. Powell, 12 Wheat. 554. It was held by Justice Story, in this case, that: "The case then resolves itself into this question, — whether a mere agreement with the drawers for a delay, without any consideration for it, and without any communication with, or assent of, the indorser, is a discharge of the latter, after he has been fixed in his responsibility by the refusal of the drawee, and due notice to himself, and we are all of opinion that it does not. * • * In order to produce such a result, the agreement must be one binding in law upon the parties, and have sufficient considera- tion to support it" Davis v. Graham, 29 Iowa, 514; Galbraith v. FuUerton, 53 111. 126. 33S Hansberger v. Geiger, 3 Grat. 144. 340 Gardner v. Watson, 13 111. 347; Blackstone Bank v. Hill, 10 Pick. 183; Abel V. Alexander, 45 Ind. 523; People's Bank v. Legrand, 103 Pa. St. 309; Beach v. Zimmerman, 106 Ind. 498, 7 N. B. 237. 341 Gloucester Bank v. Worcester, 10 Pick. 528; Prouty v. Wilson, 123 Mass. 297; Smith v. Hawkins, 6 Conn. 444; EOCKVILLE NAT. BANK v. HOLT, 58 Conn. 526, 20 AtL 669. 308 DEFENSES. (Ch. 7 out reservation as to him.'*^ It is to be added, by way of caution, that this rule must not be understood to mean mere delay,'*' nor part payment/** nor the receipt by the creditor of collateral security to protect his claim.'*' For these in no wise prejudice the surety in his position. SUMMARY or DEFENSES. Real Defenses. (1) incapacity to contract: (a) infancy; (b) coverture, in some Jurisdictions; from the evidence that notes obtained through a gross swindle were- bought for half price, but no evidence was offered of the good faith of the plaintiff in buying the notes, and it was held that good faith under such a purchase was not presumed, but the plaintiff must show his good faith. Soon afterwards the same point came up in a little different form, and, the plaintiff showing by the evidence his good faith, it was held he was entitled to recover. Thus, the New York courts Ijold what seems the wiser doctrine, that the small- ness of the consideration is a circumstance of suspicion which throws; the burden of proof on the holder. But it is not conclusive evidence- of notice. It is merely evidence which, if undenied, will destroy the- bona fides of the transaction. And it is for the jury to finally de- cide whether or not the purchaser had such knowledge of the fraud. that his purchase of the instrument was a participation in it.°^ There are two principles to be added to the discussion of the gen- eral doctrine of notice. They are: (1) Notice to the purchaser, actual or constructive, must exist at the time of the acquirement of the paper for value, and that (2) notice does n6t destroy the equi- ties of a purchaser if he in turn is the transferee of a purchaser for value without notice. In regard to the first of these rules, the element of value determines the comparative superiority of _the equi- ties of the purchaser and the prior party suffering through fraud or wrong. For unless the purchaser has parted with value for the in- strument he has acquired, he is in no worse position than if he had not acquired the instrument at all. If, therefore, before he has parted with value, he receives notice of the defenses of a prior party, according to the well-settled doctrines of equity already referred to. he takes in subordination to the prior party's rights. But the pay- ment of a valuable consideration changes the balance of the equities: In liis favor, and his right to a superior equity becomes fixed, and can be at all times asserted. He is then equipped with all the rights of a bona fide purchaser. ^^ And so it is that knowledge of the fraud or wrong suffered by prior parties brought "home to the pur- chaser after the transfer to him for a valuable consideration canr " Potts V. Mayer, 74 N. Y. 594. " Weaver v. Barden, 49 N. Y. 286; De Mott v. Starkey, 3 Barb. Ch. 403; Crandall v. Vickery, 45 Barb. 156. 326 PURCHASER FOR VAtUE WITHOUT NOTICE. (Ch. 8 not shake the title he haa acquired on his purchase."^ And this rule goes to the extent that if a valuable consideration is partly paid and partly unpaid, the purchaser is to be protected to the amount ■which he has in good faith paid," because his equity is to that ex- tent superior to that of the prior party. The reason for the second rule is that the parchaseir for value without notice, when he trans- fers the instrument, transfers without reservation all the rights he had in it. The transferee is subrogated to all these rights. And if such a transferrer could have maintained an action upon the bill or note, the purchaser from him is not affected by notice of the de- fenses of prior parties. In such a case the necessities of the la-w merchant prevail over the doctrines of equity. The comparative rights of the prior party and the holder are not allowed to come into question. For otherwise the right of the bona fide holder to recover would amount to a property consisting of a right which he could not sell and transfer, and the right of sale and transfer is one of the most important incidents of property. Hence, as soon as the paper comes into the hands of a holder, unaffected by any defect, its char- acter as a negotiable security is established. And subsequent no- tice of that defect to his transferee cannot affect the right of action upon the paper any more than subsequent notice of any equity to himself."" S3 Hoge V. Lansing, 33 N. Y. 136; Howard Banking C!o. v. Welchman, 6 Bosw. (N. Y.) 280; Perkins v. Wbite, 36 Ohio St. 530; WOODWOETH v. HDN- TOON, 40 111. 131, Jolins. Gas. Bills & N. 150. 0* Dows V. Kidder, 84 N. Y. 121; DRESSER v. CONSTRUCTION CO., 93 L'. S. 93, Johns. Cas. Bills & N. 187. This was a case where partial payment only had been made when notice of fraud was given, and payment prohibited. It was held by Justice Hunt that: "The case before us is governed by the rule that the portion of an unperformed contract which is completed after notice of a fraud is not within the principle which protects a bona fide pur- chaser." Hubbard v. Chapin, 2 Allen, 328; LAY v. WISSMAN, 36 Iowa, 309. See Neg. Inst. L. § 98. »6 Northampton Nat. Bank v. Kidder, 106 N. Y. 221, 12 N. E. 577; Miller v. Talcott, 54 N. Y. 114; Farmers' & Citizens' Nat. Bank v. Noxon, 45 N. Y. 762; CHALMERS v. LANION, 1 Camp. 383. This was an action by the second in- dorsee against the acceptor of a bill of exchange. It was held that if the person who Indorsed the bill to the plaintiff could himself have maintained an action upon It, the defendant cannot give In evidence that it was accepted for a debt contracted in smuggling, although it was indorsed to the plaintiff §§ 123-131) PRESUMPTION AND BURDEN OF PROOF. 327 PKESUMPTION" AND BURDEN OF PROOF— OBDER OF PROOF. 128. The holder of a bill or note is, in the first instance, presumed to be a holder for vialue and without notice; but, if it is proved on the trial that the bill or note, in its issue or negotiation, ■vsras affected by the defenses here- iaafter specitied, it is incumbent for the holder to prove that he is such a purchaser. 129. The usual order of proof on a trial is: (a) To produce the paper sued on. (b) To prove the signatures of the defendant and of all persons -whose indorsement is neces- sary to establish the plaintiff's title. (c) To prove, as against the draw^er or indorsers, presentment, demand, dishonor, and notice of dishonor to them, or circumstances to ex- cuse these acts. 130. Upon proof of the facts specified in the foregoing section, the holder may rest for his recovery until evi- dence is adduced sho-wing: (a) That the holder -when he took the paper had notice of the equities. (b) Or that there was fraud, duress, or illegality in the issue or subsequent negotiation of the instrument. 131. Upon proof of facts specified last above, the pur- chaser must show that he or some person under whom he claims was a purchaser for value without notice. after it had become due. Masters t. Ibberson, 8 C. B. 100; May v. Chapman, 16 Mees. & W. 355; Commissioners of Marion Co. v. Clark, 94 U. S. 278; Porter T. Pittsburg Bessemer Steel Co., 122 U. S. 267, 7 Sup. Ct. 1206; SCOTLAND CO. V. HILL, 132 U. S. 117, 10 Sup. Ct 26; Verbeck v. Scott, 71 Wis. 63, 36 N. W. 600; SHAW v. CLARK, 49 Mieh. 384, 13 N. W. 786; SUFFOLK SAV. BANK V. CITY OF BOSTON, 149 Mass. 365, 21 N. B. 665; Riley v. Shawacker, 50 Ind. 592; Mornyer v. Cooper, 35 Iowa, 257; Hascall v. Whitmore, 19 Me. 102; WOODWOBTH v. HUNTOON, 40 111. 131; BASSETT v. AVERY, 15 Ohio St. 299. See Neg. Inst L. § 97. 328 PURCHASEK FOR VALUK WITHOUT NOTICE. (Ch. 8 It is the purpose of this section to show the application of the rules set forth in this and the foregoing chapter in their actual ad- ministration in courts of law. These two chapters have attemptfed to show that, where negotiable instruments are negotiated to a third person, certain defenses will not be allowed to be interposed against him in his action upon the instrument, provided he is a pur- chaser for value and without notice. In asserting the instrument as a legal right, and enforcing it in court, these principles take the form of presumptions of evidence. °° This may be made clearer, perhaps, if the meaning of a presumption is elaborated by show- ing its application. It must be kept in mind that a court is, so to speak, an invention or machine for administering justice; and that to put this machine in motion it is necessary to Ining the facts constituting a wrong to the notice of a judge and jury by written evidence or the sworn testimony of persons who have seen or known the facts to be proved. If these facts are undenied, or controverted and proved, the court then administers a remedy. But this the court of law can only do, and the machinery of justice can only be set in motion, when the facts constituting a violated right are brought before it by competent evidence. Until that time the courts sit idly by, awaiting facts demonstrating affirmatively that some one has been wronged. These facts must be proved in extenso by the per- son prosecuting the remedy, or the plaintiff. In case of negotiable bills and notes, most of the aflSrmative proof necessary to establish • other kinds of contracts is unnecessary, because the court, upon the production of the instrument, assumes certain facts as proved suffi- ciently to entitle the plaintiff to judgment, unless the defendant seeks to disprove them. So that in the first stage of the plaintiff's case the court, upon production of the instrument, assumes as prov- ed and acts upon the following facts as true: (1) That there was a sufficient consideration for the promise or order or transfer, whether the receipt of a consideration was stated or not."' B6 The burden and order of proof must, of course, depend upon the plead- ings and the issue raised. Ordinarily, the declaration or complaint is upon the B7 Olsen V. Ensign, 7 Misc. Rep. 682, 28 N. Y. Supp. 38; Botturn v. Scott, 11 N. Y. St. Rep. 514; Anthony v. Harrison, 14 Hun, 198, affirmed 74 N. Y. 013; Andrews v. Chadbourne, 19 Barb. 147. §§ 128-131) PRESUMPTION AND BURDKN OF PROOF. 329 (2) That there was such a delivery of the instrument as is nec- essary to its legal inception."^ (3) That the written terms of the instrument state the facts as therein set forth, the date showing the time of execution '" and fix- ing the time of payment; '"' the terms of payment °^ both as to its amount "' and as to its place. (4) Possession by the holder in case of an instrument payable to bearer, or indorsed in blank, or, in case of an indorsement in full, possession by the indorsee, presumes title upon a good considera- tion." Instrument itself, varying in form according to the parties by or against whom the action is brought. The declaration describes the instrument, and sets forth in substance how the defendant became a party, and his contract, the mode by Tvliich the plaintiff derived his interest in and right of action on the instru- ment, and the breach of the defendant's contract. Chit. Bills (8th Ed.) 5T8. At common law, in an action between immediate parties, it was usual to de- clare not only on the instrument itself, but also on the original consideration; the practice being to declare on the money. counts, and give the instrument in evidence under them, if adapted to the consideration. But this did not apply where there was no privity between the plaintiff and the defendant, as between indorsee and acceptor or maker. Chit. Bills (8th Ed.) 593, 594. Whitwell v. Bennett, 3 Bos. & P. 559; Waynam v. Bend, 1 Camp. 175; Eales v. Dicker, Moody & M. 324; Pierce v. Crafts, 12 Johns. (N. Y.) 90. In the United States the doctrine has been extended to suits between other than immediate parties, and it has frequently been held that under the counts for money lent, money paid, and money had and received the holder might recover against the ac- ceptor or a remote indorser. Ellsworth v. Brewer, 11 Pick. (Mass.) 316; Pierce V. Crafts, supra; Penn v. Flack, 3 Gill & J. (Md.) 369; Tenney v. Sanborn, 5 N. H. 557; Howes v. Austin, 35 111. 396; Edw. Bills & N. (3d Ed.) § 933; 2 Ames, Cas. Bills & N. 539, note 1, 874. It seems that the form of action did not affect the rights of the pafties, nor lessen the proof required to establish the plain- tiff's right to recovery. Cruger v. Armstrong, 3 Johns. Cas. (N. Y.) 5; HARKER V. ANDERSON, 21 Wend,(N. Y.) 372; Edw. Bills & N. (3d Ed.) § 934. 68 Sawyer v. Warner, 15 Barb. 282. 6« Breck v. Cole, 4 Sandf. (N. Y.) 80; GERMANIA BANK v. DISTLER, 4 Hun (N. Y.) 633; 1 Pars. Bills & N. 41. ' 60 Joseph V. Bigelow, 4 Cush. 82-84. 61 Walker v. (Say, 21 Ala. 797; Blakemore v. Wood, 3 Sneed (Tenn.) 470. 62 NORWICH BANK v. HYDE, 13 Conn. 282. Pars. Bills & N. 333-338; Abh. Tr. Ev. 411. 63 James v. Chalmers, 6 N. Y. 209; Kidder v. Horribin, 72 N. Y. 159. In PEACOCK V. RHODES, 2 Doug. 633, it was held that, where a bill of exchange 330 PURCHASER FOR VALUE WITHOUT NOTICE. (Ch. 8 (•5) That the instrument is unpaid."* (6) That in case of an undated indorsement the transfer and in- dorsement were made before the maturity of the instrument and without notice."' Thus the instrument itself is proof of most of the preliminary facts necessary to establish a right of action, and it remains to authenticate it as a valid instrument. Having once produced the paper with these presumptions attach- ed to it, it becomes necessary for this purpose to prove the following facts : (1) If the action is by the payee against the maker or acceptor, prove the maker's or acceptor's signature. °° It is unnecessary to prove a demand of the maker or acceptor because the suit is itself a sufficient demand."' (2) In an action brought by an, indorsee against the acceptor or maker, the holder must prove the signature of the defendant and also of the payee.'* The proof of the latter signature is not for the with a blank indorsement had been stolen and negotiated, the innocent in- dorsee might recover on it. In PRICE v. NEAL, 3 Burrows, 1355, it was held that an innocent indorsee could not be compelled to refund the money paid to him on a forged acceptance. If a bill of exchange be drawn in favor of a :flctitious payee, and that circumstance be known as well to the acceptor as the drawer, and the name of such payee be indorsed on the bill, an innocent in- dorsee for a valuable consideration may recover on it against the acceptor, as on a bill payable to bearer. MINET v. GIBSON, 3 Term K. 481. If A de- posit bills, indorsed in blank, with B, his banker, to be received when due, and the latter raise money upon them by pledging them with C, another banker, and afterwards become bankrupt, A cannot maintain trover against C for the bills. COLLINS v. MARTIN, 1 Bos. & P. 648. And see MECHANICS' BANK V. STRAITON, *42 N. Y. 3G5. 64 McKyring v. Bull, 16 N. Y. 297; Daniel, Neg. Inst. § 1200. 6 6 Hendricks v. Judah, 1 Johns. 318; Andrews v. Chadboume, 19 Barb. 147; Lewis V. Lady Parker, 4 Adol. & B. 838; Parkin v. Moon, 7 Car. & P. 408; New Orleans Canal & Banking Co. v. Montgomery, 95 U. S. 16; Leland v. Fam- ham, 25 Vt. 553; Mason v. Noonan, 7 Wis. 609; Mobley v. Ryan, 14 III. 51; Webster v. Calden, 56 Me. 204. 6 6 Edw. Bills & N. § 465; Abb. Tr. Ev. p. 391. In many states proof of the "defendant's signature is dispensed with unless put in issue by denial supported by affidavit. Daniel, Neg. Inst. § 1219. 6 7 Green v. Goings, 7 Barb. 652. 68 Where a bill is drawn in the name of a fictitious person, payable to the order of the drawer, the acceptor is considered as undertaking to pay to the ■§§ 128-131) PRESUMPTION AND BURDEN OF PROOF. 331 purpose of fixing the liability of the payee, but of proving that the title is in the holder.*" (3) In an action against an indorser of a bill or note, the plaintiff need not prove the signature of the maker,^" drawer,^^ or prior in- •dorsers, because, on proof of the defendant's signature, the indorser is deemed to warrant that of the prior indorsers.'^ In such case it is necessary to prove only the signatures of the persons sought to he recovered against and of persons whose indorsement is necessary to establish the plaintiff's title. (4) In case of a note or bill payable in blank or to bearer, no proof ■of title by proving signatures of indorsers is necessary; '' but, where it is sought to recover against a party from whom title is de- rived through special indorsements, the signatures of special in- dorsers must be proved.''* order of the- person who signed as drawer; and therefore an indorsee may bring evidence to show that the signatures of the drawer, to the bill and to Ihe first Indorsement, are in the same handwriting. COOPER v. MEYER, 10 , Barn. & 0. 468. In ROBINSON v. YARJROW, T Taunt. 455, it was held that the acceptance of a bill drawn by procuration admits the drawer's handwrit- ing, and the procuration to draw. In an action by the indorsee against the ac- ceptor of a bill of exchange, the witness called to prove the handwriting of the drawer stated that neither the drawing nor indorsement were of the handwriting of the person whose they purported to be. But it was proved that the defendant had acknowledged the acceptance to be his, and it was co,ntended that, as the acceptance admitted the drawing to be correct, the jury might find for the plaintiff, if they thought, upon inspection of the bill, that the drawing and indorsement were of the same handwriting. It was held necessary, however, that some proof should be given as to whose the handwriting was. ALLPORT v. MEEK, 4 Car. & P. 267. A bill purporting to "be drawn by B. & W. (a real firm), payable to their order, and indorsed by them, was negotiated by the acceptor with that indorsement upon it. Both drawing and indorsement were forgeries. It was held that if the bill was accepted, and negotiated by the acceptor with knowledge of the forgery, he was estopped to deny the indorsement, as well as the drawing, by B. & W. BEEMAN V. DUCK, 11 Mees. & W. 251. «» COGGILL V. BANK, 1 N. Y. 115; CANAL BANK v. BANK OF AKBANY, 1 Hill (N. Y.) 287. '0 Dalrymple v. Hillenbrand, 62 N. Y; 5. '1 Rose. N. P. Ev. 381-399. " Goddard v. Merchants' Bank, 4 N. Y. 147; TURNBULL v. BOWYER, 40 II. Y. 456. " James v. Chalmers, 6 N. Y. 209. See, also, supra, p. 110. 14 SMITH V. CHESTER, 1 Term R. 654, See supra, p. 116. 332 PUilCHASEK FOR VALUK WITHOUT KOTICE. (Ch. & (5) Where the recovery is sought against a drawer" or an in- dorser or indorsers,'° the plaintiff, in addition to this fact, must prove that the paper vs^as duly presented and dishonored, and that due notice thereof was given to the defendant. ''' Tlae plaintiff having established all that is necessary to entitle him to judgment, it becomes incumbent upon the defendant to prove his defense, which he does by proving in extenso whatever facts- may constitute it. And here the presumptions vary accordingly as the action is between immediate parties or between a remote party and a bona fide holder. In case of an action litigated between im- mediate parties, the general rule is that the evidence produced upou the various issues is governed by the rules governing the produc- tion and establishment of those issues in case of ordinary contracts.. But where the litigation is between a purchaser for value and a prior party, the further evidence depends upon whether the facts proved by the defendant are those constituting a real defense or a personal defense. If the defense is a real defense, the character of a purchaser for value without notice cannot avail the holder, and, the question to be established is solely whether the real defense does or does not exist and is established according to the process- in ordinary cases of contract. But where the defense is a personal one the cases divide themselves into two classes, and these are: (1) Cases where the defense proved shows lack or failure of considera- tion or premature payment or release of the bill or note; (2) cases- where the defense proved shows fraud, duress,^" or the illegality of consideration in the inception of the instrument. In the first class of cases the general presumption prevails that the indorsee of a negotiable bill or note is a bona fide holder for value." This pre- sumption is not repelled merely by proof that the bill or note, as be- 7 5 Shultz v. Depuy, 3 Abb. Prac. 252. 7 6 Clift V. Rodger, 25 Hun, 39. 7T Cojikling V. GaiHlall, 1 Abb. Dec. 423. Post, p. 336. 7 In an action by tUe indorsee against the drawer of a bill of exchange, if it appears that the defendant drew the bill without consideration, and under cftiress, it is Incumbent on the plaintiff to prove that he gave value for it, al- though it was indorsed to him before it came due. DUNCAN v. SCOTT.^l Camp. 100. SI Uoss V. Bedell, 5 Duer (N. Y.) 4G2; Case v. Mtclianics' Banking Ass'n, * N. Y. IGO. §§128-131) PRESUMPTION AND BURDEN OF PROOF. 333 tween the immediate parties, was without consideration,'" or that the consideration failed,*' or was made, indorsed, or accepted by one for the sole accommodation of the other.'* When no other proof is given, the holder is not bound to prove a valuable consideration. Thus, unless the defendant proves that the plaintiff had notice of the fact of such want or failure of consideration or of the payment or discharge of the bill or note, or proves that for some reason the plaintiff is not a bona flde holder for value,'^ then these facts are ir- relevant, and the defense will not be received. But if the defend- ant first proves by evidence sufficient to go to the jury that the trans- fer to the plaintiff was in bad faith,'* or without value," he may then prove the facts of his defense. On such proof by the defend- ant it becomes incumbent on the plaintiff to prove that he is a hold- er in good faith and for value. And if he cannot prove this, he must disprove the facts of the defendant's defense, or else he cannot re- cover. Cases where the defense is fraud or illegality of consideration are "distinguished from the defenses first mentioned in that their proof by the defendant changes the presumption that the holder is one in good faith and for value, and throws the burden of proving these facts in the first instance upon the plaintiff. It being shown that the bill or note, or the transfer thereof, is tainted with fraud or il- legality, the assumption is that the holder is a partaker in the fraud or illegality, and he must prove that he is not. In the often-quoted case of DUNCAN v. SCOTT," where a bill was given by the defend- ant under coercion and fear of death, Lord Ellenborough said: "It 82 "The maker o( a negotiable instrument is not allowed to impair its value in tlie hands of a bona fide holder by denying the existence of a consideration, or by othenvise showing that it is not what it purports to be." Lewis, J., in LENNIG V. RALSTON, 23 Pa. St. 137. 83 Mechanics' & Traders' Nat. Bank v. Crow, 60 N. Y. 85. " Harger v. Worrall, 69 N. Y. 870. 8»Brookman v. Millbank, 50 N. Y. 378; Abb. Tr. Bv. 441; WRIGHT v. IRWIN, 83 Mich. 32; Gray v. Bank" of Kentucky, 29 Pa. St. 365; Wilson v. Lazier, 11 Grat. 478; Whittaker v. Edmunds. 1 Moody & R. 30C; COLLINS v.' GILBERT, 94 U. S. 758; Holden v. Rattan Co., 168 Mass. 570, 47 N. E. 241. 86 Smith V. Sac Co., 11 Wall. 139-147. 8' First Nat. Bank v. Green, 43 N. Y. 298; Collins v. Gilbert, 94 U. S. 753. '8 (1807) 1 Camp. 100. 334 PUECHASER FOR VALUE WITHOUT NOTICE. (Ch. 8 is incumbent upon the plaintiff to give some evidence of consider- ation;" and this principle has been followed in many cases in Eng- land, and in most of the states of the United States.'" It has been explained to mean that a plaintiff suing upon a negotiable note or bill purchased before maturity is presumed, in the first instance, to be a bona fide holder. But when the acceptor or maker has shown the bill or note was obtained from him under duress, or that he was defrauded of it, the plaintiff will then be required to show under what circumstances and for what value he became a holder. The reason for this rule is that, where there is fraud, it is but reasonable to suppose that he who is guilty of it will part with the instrument for the purpose of enabling some third party to recover upon it. Such presumption operates against the holder, and devolves upon him the duty of showing value and lack of notice in rebuttal of the duress or fraud in order to maintain his action. °° In the cases of illegality the rule is the same, and for the same reason. The bur- den is cast upon the plaintiff to show that he took the paper for value and in good faith. Some of the cases declare that the holder need not show he had lack of notice, but need only show value,°^ because the burden of showing notice is upon the party who seeks to impeach the title. But the other courts maintain, and properly, that, in addition to proving value, the holder should prove that he bought the note in good faith, and should show that he had no knowledge or notice of the fraud."^ If value and notice are dis- ss CLARK V. PEASE, 41 N. H. 414; PATON v. COIT, 5 Mich. 505; Carrier V. Cameron, 31 Mich. .373; KELLOGG v. CURTIS, 69 Me. 212; SMITH v. LIVINGSTON, 111 Mass. 342; NATIONAL BANK v. KIRBY, 108 Mass. 4S7; Rock Island Nat. Banlj v. Nelson, 41 Iowa, 563; REAMER v. BEI.,L, 79 Pa. St. 292; BAILEY v. BID WEILL, 13 Mees. & W. 73; HARVEY v. TOWERS, 6 Exch. 656; SMITH v. BRAINE, 16 Q. B. 244. 90 First Nat. Bank v. Green, 43 N. Y. 298; Wilson v. Rocke, 58 N. Y. 642; Harger v. Worrall, 69 N. Y. 370. 01 JONES V. GORDON, 2 App. Cas. 16; KELLOGG v. CURTIS, 69 Me. 212; NATIONAL BANK v. KIRBY, 108 Mass. 497. See Benj. Chalm. Bills & N. art. 97, and note. 02 Canajobarie Nat. Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402; Vos- burgh V. Diefendorf, 119 N. Y. 357, 23 N. E. 801. See, also, Northampton Nat. Bank V. Kidder, 106 N. Y. 221, 12 N. B. 577; Farmers' & Citizens' Bank v. Noxon, 45 N. Y. 762; Cummings v. Thompson, 18 Minn. 246 (Gil. 228); Sulli- van v. Langley, 12C Mass. 437; SMITH v. LIVINGSTON, 111 Mass. 342. Such §§ 128-131) PRESUMPTION AND BURDEN OF PROOF. 335 puted as facts, they must be passed upon by the jury. Hence it fol- lows that it is not necessary for the defendant, as in case of lack or failure of consideration, to show that the plaintiff did not pay value,, or that he had notice of the facts of the defense, but these facts, must appear affirmatively on the plaintiff's part. It is probable that this rule does not mean that the plaintiff must prove a direct neg- ative,"' but that, as a part of the direct case, he must show the facts of the transaction constituting the transfer, and then, if there is nothing in the transaction itself to show bad faith, and there is no- proof from other sources of want of good faith, or actual or construc- tive notice of the defense, the plaintiff must prevail. is the rule under Neg. Inst. L. § 98; and also under the English Bills of Bx- cliange Act (section 29) as construed in TATAM v. HASLAR, 23 Q. B. Div. 345. 93 Sullivan v. Langley, 120 Mass. 437; NATIONAL BANK v. KIRBY, 108. Mass. 497. 336 PKESENTMENT AND NOTICE OF DISHONOR. (Gh. 9 CHAPTER IX. PRESENTMENT AND NOTICE OF DISHONOR. 132. In General. 133-140. Presentment. 141-144. By Whom and to Whom Made— Effect of Failure to Present and Protest. 145-146. Notice of Dishonor. 147-147b. Excuses for Failure to Present or Give Notice. IN GENERAL. 133. To charge the drawer and indorsers, presentmont for acceptance or for payment, as the case may be, to be foUow^ed in case of refusal by notice of dishonor^ is neces- sary. The doctrines of presentment, protest, and notice of dishonor re- late peculiarly to the liabilities of the drawer and indorser. These acts, on the part of the holder, are a condition or stipulation which the law merchant embodies in the contracts of each of them. They are so much of the essence of the contract that, unless the holder fulfills them in exact accordance with the requirements of law, he cannot in most circumstances enforce the instrument We have already pointed out '■ that the law construes the contract of the drawer and also of the indorser to be distinct promises to every party who subsequently takes the instrument, to pay the instrument if the acceptor or maker does not. And we have also pointed out ' that the law implies as a condition of the enforcement of this con- tract of indemnity that the holder shall first seek the payment of the instrument from the persons primarily liable to pay it. If the in- strument is not paid by them, then there is prescribed a system of formalities to be strictly followed to enable the holder to claim at the law's hands the enforcement of the drawer's or indorser's lia- bility. These formalities are usually, though perhaps inaccurately, 1 See supra, pp. 156-159. 2 See supra, pp. 156-159. §§133-139) PKESEXTMENT. 337 known as "presentment," "demand," "protest," and "notice of dis- honor," some or all of them to be followed according as the case may be. And it is our purpose to take up each of these steps in their order, to show their nature and the rules relating to them. We shall first examine the subject of presentment, stating the rules as to its nature and the time within which, the place where, and per- sons by whom and to whom it should be' made. PBESENTMENT. 133. The presentment of a bill or note is commonly as follows: (a) Of a bill for acceptance. (b) Of a bill or note for payment. 134. A bill or note is presented by exhibiting it and re- questing its acceptance or payment. When presented, the instrument must be in the possession of the person presenting the same. 134a. Presentment for acceptance is necessary in the case of bills payable at or after sight, or after demand. In other cases, in the absence of express stipulation, it is optional. 135. Presentment for acceptance may be made at any time before maturity, except in cases of bills payable at or after sight, or after demand. 136. Bills payable at or after sight, or on or after de- mand, or after any other uncertain event, must be pre- sented within a reasonable time. 137. Presentment for payment must be made on the day when the bill or note is due. A bill or note properly presented for payment must be paid forthwith. 138. ■ Presentment should be made during usual and reasonable hours. 139. The presentment for acceptance, if the bill is ad- dressed to the drawee at a particular place, should be NEG.BILLS.— 22 388 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 made at that place. If the bill is not addressed to any- particular place, presentment should be made either to the drawee personally, or at his dwelling or place of business at the time of presentment. 140. It is not necessary that a presentment for pay- ment should be personal. It is suf&cient if made at the place specified in the instrument, or personally if the maker or acceptor w^aives his right of having it made at the place stipulated in the contract; and, if no place is specified in the instrument, then if made at the place of business or residence of the maker or acceptor. A proper legal presentment consists of an actual exhibition of the paper ° to the drawee, acceptor, or maker. In case of a presentment for payment, the reasons for a personal presentment and an exhibi- tion of the bill * are that the acceptor or maker may judge of the genuineness of the bill; that he may judge of the right of the holder to receive the contents; and that he may obtain immediate posses- sion of the bill or note, upon paying its amount." In case of pre- 3 Daniel, Neg. Inst. §§ 462, 4S3; Edw. Bills & N. § 558. See Neg. Inst. L. § 134. 4 MUSSON V. LAKE, 4 How. 262. 5 In the case of HANSARD v. ROBINSON, 7 Barn. & 0. 9, -whicli was an action by an indorsee against the acceptor of a bill of exchange, it was shown that the bill was not presented for some time after it was dne and that the de- fendant offered another bill, but before such bill was given, the first bill was lost by the plaintiff's clerk. It was said by Lord Tenterden, C. J., in his opinion, that it was the custom of merchants that: "The holder of the bill shall present the Instrument, at its maturity, to the acceptor, demand payment of the amount, and upon receipt of the money deliver up the bill. The ac- ceptor paying the bill has a right to the possession of the instrument for his own security, and as his voucher and discharge pro tanto in his account with the drawer." As to the acceptor's remedy should the holder refuse to deliver the bill after receipt of payment, see Alexander v. Strong, 9 Mees. & W. 733; Stone V. Clough, 41 N. H. 290; Otisfield v. Mayberry, 63 Me. 197. It has con- sistently been held in England and many states that no action at "law lies against the acceptor or maker upon a bill or note which has been lost or de- stroyed, the plaintife being left to his remedy in equity, which has power to secure the defendant against being called upon a second time to pay by re- quiringE the plaintiff to furnish indemnity. PIBRSON v. HUTCHINSON, 2 §§ 133-140) PEESENTMENT. 3B9 sentment for acceptance, the reasons for a personal presentment are that the acceptor has a right to see that the person demanding it has a right to do so before he is bound to answer whether he will accept or not,* and that in those jurisdictions where it is required that the acceptance should be written on the paper, a demand for acceptance would clearly be futile unless the paper were at hand to- write the acceptance upon it But as these reasons show, this rule is for the protection of the drawee, acceptor, or maker, and he may therefore waive them by not insisting upon a personal presentment. If the holder is in a situation to comply with their demand for per- sonal presentment it is sufficient. Hence, if the holder has the bill or note with him at the time of presentment, and so describes it as to leave no doubt but that the drawee, acceptor, or maker under- stands what the instrument in question is, and the drawee, acceptor^ or maker does not require him to produce it, then a refusal or omis- sion to accept or pay will subject all parties to the consequent pen- alties." The sole requirement is that the instrument must be in the- Camp. 211; HANSARD v. ROBINSON, 7 Bam. & C. 90; RAMUZ v. CROWE, 1 Exch. 167; Rowley v. Ball, 3 Cow. (N. Y.) 303; Moses v. Trice, 21 Grat. (Va.>' 556. In some states, however, a recovery at law upon furnishing indemnity has been allowed. Fales v. RusseU, 16 Pick. (Mass.) 315; HINCKLEY v. RAIL- ROAD CO., 129 Mass. 52; Bridgeford v. Manufacturing Co., 34 Conn. 546,- Morgan v. Reinzel, 7 Cranch, 278. And very generally it is held that a recovery may be had if it can be shown that the instrument has been actually de- stroyed. Des Alts V. Leggett, 16 N. Y. 582; Blandin v. Wade, 20 Kan. 251. In some states recovery without indemnity has been allowed where the in- strument was destroyed, or overdue, or transferable only by indorsement, and shown to be unindorsed. In some states the matter is regulated by statute. Rand. Com. Paper, § 1699. As to whether the owner of a lost note may re- cover against" the indorser, upon giving indemnity, it was held by Hoar, J.,, in TUTTLE v. STANDISH, 4 Allen (Mass.) 481, that "all the considerations- against allowing such a recovery apply more forcibly to the case where pay- ment is demanded of an indorser, for he is entitled to possession of the note- in order to have recourse against the maker. See, generally. Rand. Com. Paper, §§ 1691-1703; Daniel, Neg. Inst. §§ 1475-1485. * Fall River Nat. Bank v. Walton, 5 Mete. (Mass.) 216. sEtheridge v. Ladd, 44 Barb. 69; OCEAN BANK v. PANT, 50 N. Y. 475; Crandall v. Schroeppel, 1 Hun, 557; Freeman v. Boynton, 7 Mass. 483; Draper V. Clemens, 4 Mo. 52; Nailor v. Bowie, 3 Md. 251; King v. Crowell, 61 Me. 244; Fisher v. Beckwith, 10 Vt. 31; FuUerton v. Bank of U. S., 1 Pet. 604. 340 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 possession of the person presenting it whether exhibited or not.' The demand for acceptance or payment in ordinary cases should be verbal, but in some cases this may be impracticable or not in rea- son to be required. In such cases it may be in writing. But, how- ever made, it should be absolute, requiring present actual accept- ance or payment.* The dishonor of a bill of exchange is the non-compliance on the part of the drawee or acceptor with the conditions which the law has construed to be embodied in the order contained in it. The order contained in a bill of exchange on the part of the drawer and indorser is (1) an order on the drawee to accept the bill on pre- sentment; (2) an order on the drawee or acceptor to pay the bill at maturity. The refusal of the drawee or acceptor to do either of these things dishonors the bill.' The contract which the drawer and indorser thus make with the holder is that the drawee will, In the first place, accept the bill. It differs in cases of bills payable after sight or after demand and bills payable after a given date, because in the former cases from the terms of the contract the time for which the drawer or indorser indemnifies the holder is uncertain and indefinite. To prevent this from becoming a hardship to these parties, the law declares that in cases of bills made payable after sight, or after demand, or upon any other event not absolutely cer- tain, the contract of the drawer and indorser is that the drawee, on the bill being presented to him in a reasonable time from the date, shall accept it, and, having so accepted, shall pay it when duly pre- Tin ARNOLD v. DRESSER, 8 Allen (Mass.) 435, which was an action against the Indorser of a joint promissory note, the facts were that upon the day of maturity payment was demanded of the promisors, hut the demandant did not have the note in his possession, and he did not receive payment. It w£is held hy Bigelow, C. J., that "no valid presentment and demand can be made by any person without having the note in his possession at the time, so that the malcer may receive it in case he pays the amount due, unless special circumstances, such as the loss of the note, or its destruction, are shown to excuse its absence." 8 Story, Prom. Notes, § 242. "A demand of payment, at the place indicated in the note, on or after its maturity, is a prerequisite to the right of recov- ery." Maitin, J., In WOOD v. MULLEN, 3 Rob. (La.) 395, 390. » Ames, Bills & N. p. 787; Edw. Neg. Inst. §§ 529-535. f§ 133-140) PRESENTMENT. 341 sented for payment.'" Presentment for acceptance in such cases is hence essential. But in case of a bill payable a certain time after date, the contract of the drawer and indorser is that the drawee shall accept it if it is presented to him before the time of payment; and, having so accepted, shall pay it when it is in due course pre- sented for payment. The contract of the drawer and indorser is dis- tinguished from their contract on bills payable after demand, or after sight, in that the drawer, by fixing a day certain for payment, assumes the responsibility of providing funds at that time, and the indorser makes a new bill on the same terms, and waives his right of immediate acceptance by putting his bill into circulation without ac- ceptance. Presentment for acceptance in this case is therefore op- tional,*' for, if the bill is not presented for acceptance at all, never- 10 ALLEN V. SUYDAM, 20 Wend. 321; AYMAR v. BEERS, 7 Oow. 705; ROBINSON V. AMES, 20 Johns. (N. Y.) 146; El ting v. Brincherhoff, 2 Hall (N. Y.) 459; MUILMAN v. D'EGUINO, 2 H. Bl. 569; WALLACE v. AGRY, 4 Mason, 336, Fed. Cas. No. 17,006; Id., 5 Mason, 118, Fed. Cas. No. lT,097r MITCHELL V. DE GRAND, 1 Mason, 176, Fed. Cas. No. 9,661; Nichols v. Black- more, 27 Tex. 586; Mullick v. Radakissen, 9 Moore, P. C. 46. See Neg. Inst. L. § 240. Cf. section 26. Under the act it seems that bills payable "at sight" need not be presented for acceptance. 11 THILrOTT v. BRYANT, 3 Car. & P. 244; Bank of Washington v. Trip- lett, 1 Pet. 25; House v. Adams, 48 Pa. St. 261; Walker v. Stetson, 19 Ohio St. 400; Bank of Bui-lington v. Raymond, 12 Vt. 401; Bachellor v. Priest, 12' Pick. 399; ORR v. MAGINNIS, 7 East, 362; Goodall v. Dolly, 1 Term R. 713. "In relation to a bill payable at a day certain, as at a fixed time after its date, it is perfectly well settled not only in this country and in England, but also in Scotland, and In Prance, that the drawer or indorser of the bill is not dis- charged by the neglect of the holder to present the same for acceptance ifn- mefJiately, or until the time when It becomes due and payable." Opinion in ALIJSN V. SUYDAM, 20 Wend. (N. Y.) 321, 323. "Where presentment Is op- tional, the object of presenting is: (1) To obtain the accept.ince of the drawee, and thereby secure his liability as a party to the bill; (2) to obtain an im- mediate right of recourse against antecedent parties in case the bill is dis- ■ honored by non-acceptance." Chalm. Bills Exch. (4th Ed.) 132. In PLATO v. REYNOLDS, 27 N. Y. 580, where a bill payable one day after date was pre- sented for acceptance on the day it matured, ' refusal to accept was held equivalent to refusal to pay, and to render a demand for payment unneces- sary. Wright, J., said: "It Is well settled that the holder of a bill payable a specified time after date, or on a certain day, need not, for the purpose of cliarging the drawers and indorsers, present it for acceptance until it becomes due and payable. It may be presented before or at the time of maturity." ■342 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 itheless the drawer and indorser make a contract that the drawee «hall pay it when duly presented for payment. Presentment for non-acceptance, except in the case of sight bills, is thus only for the security of the holder. He has the option of •seeking from the drawer and indorser a remedy for non-acceptance or a remedy for non-payment. If by protest and notice of non-ac- ceptance he has put himself in a condition to sue the drawer and indorser, he may, as a matter of prudence, retain the bill, and en- deavor to obtain payment from the drawee when the bill has ar- rived at maturity, and not involve himself in a litigation until there has been a failure of payment as well as of acceptance.^ ^ But by non-acceptance, followed by protest and notice of dishonor, an im- mediate right of action accrues to the holder against both the draw- er and indorser.^' And. in all these cases the contracts of the draw- er and indorsers stand upon a similar footing.^* 12 WHITEHEAD v. WALKER, 9 Mees. & W. 506. In this case it was ■held that the holder of a bill of exchange, on non-acceptance and protest, and notice thereof, has an immediate right of action against the drawer, and does not acquire a fresh right of action on the non-payment of the ibll when due. The statute of limitations, therefore, runs against him from the former, and not from the latter, period. 13 Mason v. Franklin, 3 Johns. 202; Weldon v. Buck, 4 Johns. 144; Wat- son v. Loring, 3 Mass. 557; Union Bank v. Hyde, 6 Wheat. 572; Starry v. Robinson, 1 Day, 11; Thompson v. Chimming, 2 Leigh, 321; Smith v. Roach, 7 B. Mon. 17; Bright v. Furrier, 3 Burrows, 1687; Mllford v. Mayer, 1 Doug. 55; EVANS v. GEE, 11 Pet. 80; LUCAS v. LADEW, 28 Mo. 342; Exeter Bank v. Gordon, 8 N. H. 66; WINTHOP v. PEPOON, 1 Bay (S. 0.) 468. See ■Neg. Inst. L. § 248. 14 BALLINGALLS v. 6L0STER, 3 East, 481. It was held in this case by Lord Bllenborough, 0. J., that "there is no distinguishing the case of an in- dorser from that of the drawer, it having been long ago decided that every Indorser is in the nature of a new drawer, every Indorsement as a new bill, and that the indorser stands, as to his indorsee, in the law merchant, the same as the drawer." See, also, the case of HEYLYN v. ADAMSON, 2 Bur- rows, 669, where it Is said by Lord Mansfield that when a bill of exchange Is indorsed, "as between the indorser and indorsee, it is a new bill of ex- change, and the indorser stands in the place of the drawer." See, also, the opinion in the case of SUSE v. POMP, 30 Law J. C. P. 75. In PECK v. MAYO, 14 Vt. 33, it was said by Redfield, J.: "No man, I apprehend, doubts -that the indorser of a note or bill is liable, in regard to the principal debt, ^to the same extent as the original debtor." §§ 133-140) PRESENTMENT. 343 The following rules are the principal ones relating to instruments payable at or after demand and at or after sight: (1) Instruments payable on demand need not be presented for ac- ceptance, but they must be presented for payment within a reason- able time.^" In case of instruments payable after demand, the de- mand must be made within a reasonable time. (2) Instruments payable at or after sight must be presented for acceptance or payment within a reasonable time.^° What is a rea- sonable time within which to present for acceptance may be affected by the circumstance whether or not the bill has been placed in cir- culation, for when the bill has been transferred a wider latitude as to the time of presentment is allowed. This results from the fact that a party receiving a negotiable bill payable at sight has a right to sell it, or to send it elsewhere for sale, and by the exercise of this right the time of presentment is necessarily delayed.* " Walker v. Stetson, 19 Ohio St. 400, Johns. Cas. Bills & N. 89. A pur- chased a draft on C, of New York, on March 17th, in Erie, Pa. On March 27th he sold the draft to a hank in Newark, N. J., and the bank presented it on the 28th of the same month. Payment was refused, and the draft pro- tested. It was held that, under the circumstances, the presentment was in reasonable time. NEWARK BANKING 00. v. NATIONAL BANK OF ERIE, 63 Pa. St. 404. See Neg. Inst. L. § 4. 18 "The law is settled by an unbroken line of decisions that all drafts, whether foreign or inland bills, must be presented to the drawee within a reasonable time. * * * But what is a reasonable time, under all the cir- cumstances, is sometimes a most difficult question. The general doctrine is, each case must depend on Its own peculiar facts, and be judged accord- ingly." Scott, J., in Montelius v. Charles, 76 111. 303. See, also, ROBINSON V. AMES, 20 Johns. (N. Y.) 147; Jordan v. Wheeler, 20 Tex. 698. *MUILMAN V. D'EGUINO, 2 H. Bl. 565, per Buller, X; MELL-ISH v. KAWDON, 9 Bing. 416; WALLACE v. AGRY, 4 Mason, 336, Fed. Cas. No. 17,096; ROBINSON v. AMES, 20 Johns. (N. Y.) 146. In WALLACE v. AGRY, supra, Story, J., said: "The party who receives a negotiable bill payable after sight 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 re- mittance of it, or to send it directly to the country on which it is drawn. He is at full liberty to put it in circulation, or to send it to any other place for sale or remittance; and the only limitation upon this right is that he shall have It presented within a reasonable time, be the conveyance direct or indirect. * * * [He] is not at liberty to send it to very remote places, wholly out of the course of trade, if there be unreasonable delay thereby ^44 PRIi;Sp:NTMENT AND NOTICE OF DISHOKOS. (Ch. 9 l^ime of Presentment. The reason why bills payable on demand and at sight differ in the necessity for their presentment for acceptance is from the dif- ference of meaning of the terms embodied in the contract. The term "demand" is construed to mean forthwith upon presentment. The common-law theory was that even demand was unnecessary, be- cause it evidenced a debt in prsesenti where the debt itself was pre- cedent to any demand.^' Hence, demand notes and instruments of that character were not, in general, entitled to grace.^' But "at sight" means the same thing as "upon acceptance." And, as a gen- eral thing, a bill or note payable at sight or after sight does not become due until it is seen or accepted.^ ° Hence, bills payable at sight are held to be entitled to grace,^" because they do not become in the presentment for acceptance, and thus fix the drawer with an in- definite 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. * * * It would be a most inconvenient rule to hold that such a negotiation of bills was at the sole peril of the holder." The Negotiable Instruments Law provides (section 241) that the holder of such a bill "must either present it for acceptance or negotiate it within a reasonable time." 1' Capp V. Lancaster, Cro. EliK. ,548; Rumball v. Ball, 10 Mod. 38; Collins V. Denning, 3 Salk. 227; 15 Vin. Abr. 103. 18 1 Pars. Notes & B. 407; Story, Prom. Notes, § 224; Story, Bills, § 342; Cammer v. Harrison, 2 McCord, 24G; First Nat. Banii of Davenport v. Price, 52 Iowa, 570, 3 N. W. 639: Luckey v. Pepper, Morris (Iowa) 490. 19 Campbell v. French, G Term R. 200, 2 H. Bl. 163; Sutton v. Toomer, 7 Barn. & C. 416; Holmes v. Kerrison, 2 Taunt. 323; Sturdy v. Henderson, 4 Earn. & Aid. 592. In THOKPE v. BOOTH, Byan & M. 388, it -syas held tliat the statute of limitations did not run against a note payable 24 months after demand until demand had been made. A promissory note was made in the following form: "I promise to pay M. A. D., or bearer, on demand, the sum of £16 at sight." Held, that no action was maintainable without a presentment for sight. DIXON v. NUTTALL, 1 Oromp., M. & R. 30t3. As holding that the statute of limitations runs from the date of a note payable on demand, dnd not from the time of .demand, see NORTON v. ELLAM, 6 Law J. Exch; 121. In SANDERSON v. BOWES, 14 East, 50O, which was an action in assumpsit on a promissory note, it was held that the declaration must aver presentment at the place. See, also, AYMii.R v. SHELDON, 12 Wend. (N. Y.) 439. 20 HART V. SMITH, 15 Ala. 807; Thornburg v. Emmons, 23 W. Va. 325; §§ 133-140) PRESENTMENT. 345 due until an opportunity for their acceptance is given, and, if ac- cepted, the acceptor is entitled to the usual extension of time to pay them. As a consequence of the construction of these terms, bills payable on demand need not be presented at all for acceptance, but need only be presented for payment.^^ But the law nevertheless limits the time for which they may be held as a security, and bills or notes payable on demand must be presented for payment within a reasonable time, or else they will be treated as overdue.^^ If transferred after a reasonable time, they are subject to equities,^^ and the transferee ia charged with constructive notice, because the term "demand" implies a short term. Such is the general rule, though there has been conflict of authority, and in England it has been held, at least in the case of demand notes, that they are not overdue until after demand, or the expiration of the statutory period of limitation.^* There has also been much conflict as to the time when demand notes must be presented in order to charge indorsers. As to demand bills it is held that they must be presented within a reasonable time.^° And the same rule is in the United States gen- erally applied to demand notes ; * but in England and in some of the Janson v. Thomas, 3 Doug. 421; Daniel, Neg. Inst. § 617. Neg. Inst. L. § 145, as enacted in most states, abolishes grace. By the act (section 26) "at sight" is made equivalent to "on demand." Cf. Id. § 240. 21 Daniel, Neg. Inst. §* 454. See Neg. Inst. L. § 240. 22HERE1CK V. WOOLYERTON, 41 N. Y. 581; Crim v. Starkweather, 88 N. Y. 339; Furman v. Haskin, 2 Caines, 369; Loomis v. Pulver, 9 Johns. 244; RANGER v. OARY, 1 Mete. (Mass.) 369; Cromwell v. Arrott, 1 Serg. & R. 180. It is to be noted that the term "with interest" does not vary this construction as to the maker or acceptor. HBREICK v. TV'OOLVERTON, supra; Crim v. Starkweather, 88 N. Y. 339. 23 Wethey v. Andrews, 3 Hill, 582; Sice v. Cunningham, 1 Cow. 397; La Due V. Bank, 31 Minn. 33, 16 N. W. 426. See Neg. Inst. L. § 92. 2* BROOKS v. MITCHELL, 9 Mees. & W. 15; Gascoyne v. Smith, 1 McClel & Y. 338. "National Newark Banking Co. v. Second Nat. Bank, 63 Pa. St. 404; PARKER 7. EBDDICK, 65 Miss. 242, 3 South. 575; MORGAN t. U. S., 113 U. S. 476, 5 Sup. Ct. 588. ♦FIELD V. NICKERSON, 13 Mass. 131; Martin v. Winslow, 2 Mason, 241, Fea.Cas. No. 9,172; KEYES v. FENSTERMAKEK, 24 Cal. 329; Lindsey v. Mc- Clelland, 18 Wis. 481. 346 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 states demand notes,** at least if payable with interest,! have been considered to be upon a different footing, upon the theory that they are intended to be continuing securities. The Negotiable Instru- ments Law J provides that, where the instrument is payable on de- mand, "presentment must be made within a reasonable time after its issue, except that, in the case of a bill of exchange, presentment for payment will be sufScient if made within a reasonable time after the last negotiation thereof." In cases of instruments payable at sight, or at a certain time after sight, where presentment for acceptance is a prerequisite, pre- sentment for acceptance is needed in order to determine the day of payment.^* In ease of instruments payable after demand, present- ment must be made for the same reason. Here the same rule is adopted for the measure of time allowed for presentment as in case of the presentment for payment of bills and notes payable on de- maud, namely, that such instruments must be presented within a reasonable time. The language of the cases implies a difference in the liability of the drawer and indorsers, though a sufficient reason for it does not appear. For it is said that otherwise the drawer or indorser will be discharged in case of presentment for acceptance, and that they have an interest in having the bill accepted immediately and paid according to the terms of the contract. It would be a wrong to subject them to indeterminate delay in the terms of payment which they have guarantied. For they might not be able to protect themselves by other means before it is too late, if the bill or note is not accepted, or accepted and paid, within the time of payment contemplated by them.^' It would seem also ** BROOKS V. MITCHELI/, 9 Mees. & W. 15; Gaseoyne v. Smith, 1 McClel. & Y. 338. tMERRITT V. TODD, 23 N. Y. 28; Parker v. Stroud, 98 N. Y. 379; SHIfTTS V. FIN6AR, 100 N. Y. 539, 3 N. E. 588. Thielman v. Gueble, 32 La. Ann. 260; TURNER v. MINING CO., 74 Wis. 355, 43 N. W. 149; Leonard t. Olson, 99 Iowa, 162, 68 N. W. 677, contra. t Section 131. 2s Mulllck v. Radakissen, 9 Moore, P. C. 66, 28 Eng. Law & Eq. 86; Fry v. Hill, 7 Taunt. 397. And see cases cited supra, p. 341. 27 ALLEN V. SUYDAM, 20 Wend. (N. Y.) 321; AYMAR v. BEERS, 7 Cow. (N. Y.) 705, and cases cited supra, p. 341. §§ 133-140) PRESENTMENT. 347 that this rule applied also to cases of presentment of sucli instru- ments for their payment. The exact application of the meaning of a reasonable time is not clear, for the question is as yet an unsettled one. It has been the subject of discussion in the courts. No absolute measure of this reasonable time has been fixed. The following times have been held reasonable: A day or two,^' seven days,^° a month;'" the following unreasonable: Eight months,'^ three and one-half months/^ two months and a half.'' By some courts it is deemed a question of fact,'* and the province of the jury to decide; by others, one of law, for the court to decide.'^ The better opinion would seem to be that it is a question for neither the jury nor the court to decide wholly, and yet a question in whose determination both the jury and the court must take part. "Wbat is a reasonable time," said Judge Byles," "depends on the circumstances of each particular case, and is a mixed question of law and fact, although reasonable time 28 FIELD V. NICaKBRSON, 13 Mass. 131-337. In this case it was held that "the condition on which the indovser is liable is that payment shall he de- manded within a reasonable time, and the earliest notice possible given of refusal. This time may therefore vary according to the circumstances and situation of the parties, to be determined by the jury, under the direction of the court. It Is impossible to fix any precise period." 28 Thurston v. M'Kown, 6 Mass. 428. 30 RANGER V. GARY, 1 Mete. (Mass.) 369. 81 American Bank v. Jenness, 2 Mete. (Mass.) 288. 82 Stevens v. Bruce, 21 Picls. 198. 33 LOSEE V. DUNKIN, 7 Johns. (N. Y.) 70. See, also, collated cases, Tied. Com. Pap. I 216, note. 31 WALLACE V. AGRX, 4 Mason, 336, Fed. Cas. No. 17,096; Fry v. Hill, 7 Taunt. 397. In MTJILMAN v. B'EGUINO, 2 H. Bl. 553, the following was part of the opinion delivered by Eyre, 0. J.: "I think, indeed, that the holder is bound to present the bill in reasonable time, in order that the period may commence from which the payment Is to take place. The question what is reasonable time must depend on the particular circumstances of the case; and it must always be for the jury to determine whether any laches is im- putable to the plaintiff." Fernandez v. Lewis, 1 McCord, 322; Nichols v. Blackmore, 27 Tex. 586; Barbour v. Fullerton, 36 Pa. St. 105. BBATMAR V. BEERS, 7 Cow. (N. Y.) 707; Edw. Bills & N. §§ 539-546; Sice V. Ounningham, 1 Cow. (N. Y.) 397; POORMAN v. MILLS, 39 Cal. 345; OarU V. Brown, 2 Mich. 401; Sylvester v. Crape, 15 Pick. (Mass.) 93. 36 Wood's Byles, Bills, p. 183. 348 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. i> in general, and reasonable time for giving notice of dishonor in particular, is a question of law." In Muilman v. D'Eguino'^ Lord Chief Justice Eyre explains the meaning of this somewhat vague expression by saying that "what is a reasonable time must depend on the particular circumstances of the case; and it must always be for the jury to determine whether any laches is imputable to the plaintiff;" and the later cases have developed fully his meaning. That a reasonable time is a mixed question of law and fact means that the question is to be decided by the jury, under proper instruc- tions from the court It may vary much, according to the particular 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 uncontradicted, then it is competent for the court to determine whether the time required by law for the presentment has been exceeded or not.^' Such being the rules with reference to the presentment for accept- ance or payment- of bills and notes payable at an uncertain time, contingent upon their being demanded or presented for sight or ac- 3 7 MUILMAN V. D'BGUINO, 2 H. Bl. 565. S6 PRESCOTT BANK v. CAVERLY, 7 Gray (Mass.) 217. In the case of MOORE V. WARREN, 1 Strange, 415, it was held that, if the party who receives a goldsmith's bill tenders it the next day, it is not his loss if the golclsmith fails. As holding that the common usage in such affairs is to be regarded, see TURNER v. MEAD, Id. 416. In MANWARING v. HAR- RISON, Id. 508, it was held that a person who did not demand a goldsmith's note in two days took the credit on himself. See, also, OOLEJIAX v. SAYER, 1 Barnard, 303. In the case of HANKEY v. TROTMAN, 1 W. BI. 1, Lee, C. J., held that "it is a question of fact whether there was convenient time allowed for receiving the money"; and Denison, J., was of the opinion that "the question is whether the plaintiff has used a reasonable diligence or not. This the jury are to judge of." In PATIENCE v. TOWNLEY, 2 J. P. Smith (Eng.) 223, It was held that where it was impossible to present the bill in due time, but where such bill was afterwards presented with due diligence, and was refused for want of due presentation, the holder miflit recover against antecedent parties. In RICKFORD v. RIDGE, 2 Camp. 537, it was the opinion of Lord Ellenborough that "it is always to be considered whether, under the circumstances of the case, the cheque has been pre- sented with due diligence. • • * It seems to me to be convenient and reasonable that cheques received in the course of one day should be pre- sented the next." §§ 133-140) PKKSENTMENT. 349 ceptance, it remains to speak of the rules regulating the present- ment for payment of bills and notes due at a given time, at what time of day they are to be presented for payment, and the effect of the theory of grace in extending the time of the payment, as well as those payable at or after sight, beyond the time stipulated in the contract. The bills and notes payable at a given date, or at a given time after date, or after demand, or after sight, must be presented when by the terms of the contract they are due.'° In general, this does not mean the day expressly stipulated in the contract, but it means that day with the additional days implied by the grace of the law merchant. Lord Holt, in 1701, in TASSELL v. LEWIS," thus expounds the rule: "In case of foreign bills of exchange, the custom is that three days are allowed for payment of them; and, if they are not paid up- on the last of the said days, the party ought immediately to protest the bill and return it, and by this means the drawer will be charged. But, if he does not protest it on the last of the three days, which are called the 'days of grace,' there, although he upon whom the bill is drawn fails, the drawer will not be chargeable, for it shall be reckoned his folly that he did not protest. But if it happens that the last day of the said three days is a Sunday or a great holiday, as Christmas Day, upon which no money used to be paid, there the party ought to demand the money upon the second day; and, if it be not paid, he ought to protest the bill the second day; otherwise, 5»Thus, in the case of ANDEETON v. BECK, 16 East, 248, the plaintiff received on the 26th of December a bill due on the 28th, but kept It until the 29th, when he sent it for presentment. The bill was dishonored, and it was held that the plaintiff was guilty of laches in Iieeping the bill until the 29th. In WILLIAMS V. SMITH, 2 Barn. & Aid. 496, it was held that the true rule is that a party, in order to avoid laches, must give notice by the next day's post. In the case of POCKLINGTON v. SILVESTER, Chit. Bills (10th Ed.) 346, note 10, it was held to be established as a rule of law that a party re- ceiving a checlj on a banker has the whole of the banking hours of next day in which to present such check for payment. As to the allowance of a reasonable time for presentment, by an administrator, of a bill found Among papers of the deceased holder, see WHITE v. STODDARD, 11 Gray •(Mass.) 258. " 1 Ld. Raym. 743. 350 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. & it will be at his own peril, for the drawer will not be chargeable."^ This doctrine, thus declared to be the law merchant in case of for- eign bills, has been largely followed by courts of this country, and is probably the law, except when it ia modified by statute.* It is, however, very generally modified by statute. For as the common- law rule stands, since grace was a mere indulgence, and not a right, it was not extended beyond the term of indulgence allowed for grace. Thus, if grace expired on Sunday, the instrument would fall due on Saturday,*^ and if that Saturday was a public holiday the instrument would fall due on Friday.*^ But this has been changed by the statutes of the various states to the rule which governs bills or notes payable without grace, which allows payment on the next succeeding business day, because, the debtor not being compelled to do business or make payment on a holiday, the next day is the first legal time at which the creditor can demand payment.*' These rules apply alike to foreign and inland bills and promissory notes,** and to paper payable in installments, grace being allowed upon each installment.*" The day at which presentment for acceptance or for payment is to^ be made being fixed, the courts lay down a series of rules which are quite explicit in stating the hours of the day at which, under va- rious circumstances, presentment for acceptance or payment is to be made. The general rule is that presentment should be made dur- * See Neg. Inst. L. § 145. *i BUSSARD v. LEVERING, 6 Wheat. 102; KUNTZ v. TEMPED, 48 Mo. 75; BARRETT v. ALLEN, 10 Ohio, 426; Reed v. Wilson, 41 N. J. Law, 29. "When days of grace are allowed on a bill or note, and the third day falls on Sunday, the bill or note Is payable on the previous Saturday." Per Bron- son, J., in SALTER v. BURT, 20 Wend. 205. In BOWBN v. NEWELL, 8 N. Y. 190, It was held that whether days of grace should be allowed was de- pendent upon whether the instrument was payable on demand or at a fu- ture date. ^2 Story, Bills, § 338. 43 AVERY V. STEWART, 2 Conn. 69; SALTER v. BURT, 20 Wend. (N. T.> 205; Oolms v. Bank, 4 Baxt. (Tenn.) 422; SANDS v. LYON, 18 Oonn. 18. *4 Bank of Washington v. Triplett, 1 Pet. 25; OGDEN v. SAUNDERS, 12 Wheat. 213; BROWN v.. HARRADBN, 4 Term R. 148; Cook v. Darling, 2 E. 1. 885; Beck v. Thompson, 4 Har. & J. 531. 4B ORIDGE V. SHERBORNE, 11 Mees. & W. 374. §§133-140) PKESENTMENT. 351 ing usual and reasonable hours.f With business naen tlie legal meaning of "usual and reasonable hours" is any time during the proper hours of business. These vary, and generally range through the whole day to bedtime, in the evening.*' They are classified as follows: (1) Presentment at a bank should be during banMng hours,*^ but if made after banking hours, to the proper authorities in the bank, it is sufficient.*' (2) Presentment at a place of business, during the usual business hours,* ° though a demand to any proper person at a place of business after business hours is sufficient."" ^3) Presentment at one's residence between the usual hours of tSee Neg. Inst. L. §i 132, 135 (presentment for payment); section 242 (for acceptance). 46 CAYUGA CO. BANK v. HUNT, 2 Hill, 635. *^ Elford v. Teed, 1 Maule & S. 28; PAEIiBR v. GORDON, 7 East, 385 (in this case it was held that if a bill be accepted payable at A's, who is the acceptor's banker, the party taking such special acceptance, which he is not bound to do, thereby impliedly agrees to present it for payment within the usual banking hours at the place where it is made payable); Staples v. Franklin Bank, 1 Mete. (Mass.) 43; Thorpe v. Peck, 28 Vt. 127. 48 In the case of SALT SPRINGS BANK v. BURTON, 58 N. Y. 432, it was shown that, upon the day the note was due, the indorser, being prepared to pay it, sent the maker to the bank during banking hours to ascertain the amount. The note was presented for payment, an hour after the close of hanking hours, by the holder, to the cashier, and payment demanded. This was refused on the ground that there were no funds deposited for the pur- pose. It was held that the indorser was charged by such demand. And see Bank of Syracuse v. HoUister, 17 N. Y. 46; BANK OF UTICA v. SMITH, 18 Johns. (N. Y.) 230; Flint v. Rogers, 15 Me*. 67; OROOK v. JADIS, 6 Car. & P. 191; Commercial Bank v. Hamer, 7 How. (Miss.) 448; Cohea v. Hunt, 2 Smedes & M. 227; Shepherd v. Chamberlain, 8 Gray (Mass.) 225; BANK OF UTIOA V. PHILIPS, 3 Wend. (N. Y.) 408. *9Lunt V. Adams, 17 Me. 230; Wallace v. Crilley, 46 Wis. 577, 1 N. W. 301; Triggs v. Newnham, 1 Car. & P. 631; Strong v. King, 35 III. 9, Johns. Cas. Bills & N. 93. 5» Henry v. Lee, 2 Chit. 124; GARNBTT v. WOODCOCK, 6 Maule & S. 44. Id this case a presentment of a bill of exchange at the banking house where payable, after banking hours, is sufficient if a person be stationed at thp banking house, and return answer of "No orders." 352 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 rising and retiring." But it is sufficient if made upon the ac- ceptor or malier personally at any time.'''' In addition to this general classification, there are other consid- erations, depending largely upon the circumstances of each partic- ular case. The principal ones are the usage of trade, and the loca- tion of the domicile of the person to whom presentment is to be made.^' But the general principle underlying these considera- tions is that the person making the presentment should use due and proper diligence, and that the presentment should be made at such a time of day that the person expected to make the payment or give the acceptance, in the exercise of ordinary business prudence, can- not be supposed to have been taken off his guard or caught with out funds. It is almost needless to add that presentment at an im- proper time, as a legal act, is a nullity.^* And that the demand for payment may be made at any time within the proper period, al- though the acceptor or maker has the whole of the day to make the payment. If he is ready to pay on the same day after a demand has been made, at the proper time he must seek the creditor and tender payment" The effect of the demand upon the liability of the distinct contracts of the maker and acceptor and of t^c! u.u\, 204; Miller v. Hackley, 5 Johns. 384. 132 COMMERCIAL, BANK v. VARNUM, 49 N. T. 269. 133 BURKE V. McKAY, 2 How. 66; Bead v. Bank, 1 T. B. Mon. (Ky.) 91. IS* Daniel, Neg. Inst. § 934a. This rule Is enforced by Neg. Inst. L. § 262. For the provisions of the act generally, see sections 260-268, 286, 289 (in case of acceptance for honor); and section 181 (waiver of protest). 372 PRESENTMENT AND NOTICE OF DISHONOR. (Cll. 9 NOTICE OF DISHONOR. 145. NOTICE OF DISHONOR— Is bringing, either ver- bally or by writing, to the knowledge of the drawer or the indorser of an instrument, the fact that a specified negotiable instrument, upon proper proceedings taken, has not been accepted, or has not been paid, and that the party notified is expected to pay it, 146. Notice must be given as follows : (a) By the holder of the instrument, or by any person upon whom a liability is fixed to any person upon w^hom it is sought to fix a liability. (b) Between parties residing in the same place, either by giving it personally, verbally or in w^riting, or by leaving a w^ritten notice at the residence or place of business of the party to be charged; between parties resid- ing in diflferent places, by depositing in the post ofQ.ce, postage paid, a written notice, properly addressed to the person to be charged. ■(c) Within one day after an unqualified refusal to accept the bill or pay the instrument, or by an indorser w^ithin one day after he has re- ceived notice of his own liability. This means in proper hours of a business day between co-residents, and -when served on a non-resident, by or before the last post, if there be one the next day, if not, in the first practicable mail thereafter. According to Lord Denman,"" the notice of dishonor is a part and parcel of the contract of the drawer and indorser, and not a step in the remedy at law of the holder to recover the amount of the is 6 ROTHSCHILD v. CURRIE, 1 Q. B. 43. §§ 145-146) NOTICE OF DISHONOR. 373- bill or note. To repeat the substance of Ms words, the drawer and indorser contract to pay the bill or note upon two conditions: One, the dishonor by the drawee, acceptor or maker on due presentment; the other, the due notification to him of such dishonor. And taking up the latter of these conditions, we purpose in this and the suc- ceeding sections, first, to examine the necessary elements constitut- ing this portion of the contract of the drawer and indorser, and then to classify and point out the persons and the methods by which it i& carried into effect. Sufficiency of Notice. Probably the most important test o'f a notice of dishonor is- whether or not the words bring home to the drawer or indorser the knowledge of the fact that he is legally charged with liability for the payment of the instrument.^ '° He is entitled to know, first, of the breach of the condition to accept or to pay the instrument on the part of the drawee, maker or acceptor, and, second, that it is sought tO' fix a liability for its payment upon him. The first object of notice is therefore to inform the party to whom it is sent that acceptance or payment has been refused by the drawee, acceptor or maker; and the second, that as drawer or indorser he is liable, and that payment is demanded of him. The important question, then, is to determine what is due and proper notice. These words may be either in writ- ing or verbal. That a verbal notice is proper seems settled both in New York and elsewhere.^'* No precise form of words is necessary to express this purpose, the rule being merely that the form of words, used must be such as to convey legal notice to the party. In this a distinction is drawn between notice of dishonor and knowledge of dis- honor. Throughout the cases the statement is common "that knowl- edge of the dishonor of a bill is not equivalent to notice of it." *** ise See Neg. Inst. L. §§ 166, 167. 138 Cuyler v. Stevens, 4 Wend. 566; Woodin v. Foster, 16 Barb. 14G; TINDAL V. BROWN, 1 Term R. 167; HOUSEGO v. COWNB, 6 Law J. Exc?i. 110; Crosse v. Smith, 1 Maule & S. 545; Merritt v. Woodbury, 14 Iowa, 299; First Nat. Bank of Iowa City v. Ryerson, 23 Iowa, 508; GILBERT v. DEN- NIS, 3 Mete. (Mass.) 495. "9 Juniata Bank v. Hale, 16 Serg. & R. 157; Bank of Old Dominion v. Mc- Veigh, 29 Grat. 559, 26 Grat. 852; Brown v. Ferguson, 4 Leigh, 37; Jagger v. Bank, 53 Minn. 386, 55 N. W. 545. 874 PEESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 This means that knowledge which is equivalent to notice, and which will make a drawer or indorser responsible, must be derived from some person entitled to call for payment. It must be information that the bill has been dishonored, and that the holder is in a position to sue him. In other words, the receipt of information by an in- dorser that an instrument is unpaid is not sufficient to fix his lia- bility. There must be coupled with it information derived from some competent person, that he, the indorser, is looked to for its payment.^*" The law in other respects has formulated certain elements for con- stituting a notice, and declares notices containing them sufficient to bring home to the knowledge of the drawer and indorser the fact that he is charged with legal liability. These elements are: ^*^ (1) That the notice contain a sufficient description of the instrument. (2) That the notice expressly or impliedly notify the drawer or in- dorser of the presentment, demand and refusal of the drawer, ac- ceptor or maker to accept or to pay the instrument. (3) That the notice inform the drawer and indorser that the holder looks to him for payment, though this element is not indispensable to the legality of the notice. Same — Identification of Instrument. , The common form of identification is to describe the instrument by date, amount, and parties, and state where it is awaiting payment ; but any identification which, as a matter of fact, would indicate unmis- takably to a business man of ordinary experience what instrument is to be paid, is sufficient^** This rule does not insist upon strict technical accuracy. Its object is to enable the indorser notified to know exactly on what bill or note he has incurred liability, and the 140 CAUNT v. THOMPSON, 7 C. B. 400; Miers v. Brown, 11 Mees. & W. 372. 1*1 Artisans' Bank v. Backus, 36 N. Y. 100; Story, Prom. Notes, § 348; Daniel, Neg. Inst | 973; Tied. Com. Paper, § 344; Glicksman v. Eailey, 78 Wis. 223, 47 N. W. 272, and Jolins. Cas. Bills & N. 200. 1*2 Gill V. Palmer, 29 Conn. 54; Messenger v. Southey, 1 Man. & G. 76; Housatonle Bank v. Laflin, 5 Cush. 546; Keynolds v. Appleman, 41 Md. 615; MILLS V. BANK, 11 Wheat. 431; Thompson v. Williams, 14 Cal. 162; Tobey V. Lennig, 14 Pa. St. 483; Boss v. Planters' Bank, 5 Humph. 335; Wood v. Watson, 53 Me. 300; Snow v. Perkins, 2 Mich. 238; McGune v. Belt, 38 Mo. 291. See Neg. Inst. L. § 167 (form of notice). §§ 145-146) NOTICE OF DISHONOR. 375 object of the inquiry of the court is to ascertain whether or not he has been apprised of this fact The notice must state what the bill or note is,^*' and must not be calculated in any way to mislead the party to whom it may be given. It must not misdescribe the instru- ment, so that the defendant may perhaps be led to confound it with some other.*** The description of the bill or note should be suffi- ciently definite to enable the indorser to know to what instrument in particular the notice applies; for an indorser may have indorsed many bills or notes of different dates, sums, and times of payment, and payable to different persons, so that he may be ignorant, unless the description in the notice is special, to which it properly applies or which it designates.**" And in determiuing whether the de- scription of the note or bill is sufficient, the circumstances of the case and the indorser's knowledge of these circumstances may be taken into consideration.*** , A notice which omits an essential feature of the indorsement or misdescritaes it is an imperfect one, but is not necessarily invalid.**' It is invalid only when it fails to give that information which it would have given but for its particular imper- fection. And even in case the notice in itself be defective, if, from the evidence of the attendant circumstances, it is apparent that the indorser was not deceived, or misled as to the identity of the note, "s Daniel, Neg. Inst § 974. But see HODGES v. SHULER, 22 N. T. 115. "4 Story, Prom. Notes, § 349. "5 Cook V. Litchfield, 9 N. Y. 279; Home Ins. Co. v. Green, 19 N. Y. 519. *" Daniel, Neg. Inst. § 976. 1" In HAEEISON v. RUSCOB, 15 Mees. & W. 231, it was shown that a bill of exchange was drawn by H, indorsed by him to B, and by B to 0, in whose hands it was dishonored. C's attorney gave notice in due time to A, but stated therein, by mistake, that he was directed by B (from whom he had no authority) to apply for payment of the bill. It was held that the notice of dishonor was suflBcient, notwithstanding this misrepresentation, the only effect of which was to give A every defense against C that he would have had if the notice had really been given by B. In an action by the first indorsee of a bill against the drawer, it was proved that the plaintiff wrote a letter to the de- fendant, stating the bill to be dishonored, and requiring payment; but the letter misdescribed the bill as drawn by J. H. (the acceptor), and accepted by the defendant. Held, that this was sufficient notice of dishonor. Parke, B., said: "This notice is quite sufficient It is not possible, under the circum- stances, that the defendant could have been misled by it" MELLBESH v. RIPPEN, 7 Exch. 57& 376 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 he will be charged.^*' It thus may become a question of fact whether or not from the contents of the notice itself and the extrin- sic facts admitted into the case, knowledge of the dishonor was ac- tually brought home to the indorser.^*' But this is only where there is doubt whether the indorser understood what particular in- strument was dishonored. When there is no dispute as to the facts, the sufficiency of the notice is a question of law for the sole inter- pretation of the court.^"" Same — Statement of Presentment, etc. When there can be nodoubtthatthemindofthedrawerorindorser identifies the bill or note which is unpaid, then the further question is whether the notice contained a statement of presentment, demand, non-acceptance or non-payment sufficient to comply with the rules of the law merchant. This is a question of law and of construction peculiarly the province of the court.^°^ Some form of statement that the bill or note has been duly presented and dishonored is es- sential to establish the claim or right of the party giving notice, for otherwise he will not be entitled to any payment from the drawer and indorser.^ °^ Mere notice of the fact that the bill or note has not been paid affords no proof whatever that it has been presented in due season, or even that it has been presented at all. And if there be no statement of the dishonor of the bill or note, nor any- thing from which it can be fairly implied that due presentment has , been made, the notice is fatally defective.^^^ Whatever will show dishonor is sufficient.^"* No particular form of notice is necessary. The holder is only required, in such language as he may adopt, to 1*8 Carter v. Bradley, 19 Me. 62; SMITH v. WHITING, 12 Mass. 6; Moor- man v. State Bank, 3 Port (Ala.) 353; Remer v. Downer, 23 Wend. 620; KING V. HURLEY, 85 Me. 525, 27 Atl. 463. 140 HODGES v. SHULER, 22 N. Y. 114. ,160 Cayuga Co. Bank v. Warden, 6 N. Y. 19; Dole v. Gold, 5 Barb. 494. 161 Dole V. Gold, 5 Barb. 490. 152 Lewis V. Gompertz, 6 Mees. & W. 402; Wilkinson v. Adam, 1 Ves. & B. 466; Boulton v. Welsh, 3 Bing. N. C. 688. See Neg. Inst. L. § 167. 158 Page V. Gilbert, 60 Me. 488; GILBERT v. DENNIS, 3 Mete. (Mass.) 495; Phillips V. Gould, 8 Car. & P. 355; Graham v. Sangston, 1 Md. 60; Lockwood T. Crawford, 18 Conn. 361; Sinclair v. Lynah, 1 Speer, 244. 154 Rowlands v. Springett, 14 Mees. & W. 7; Shelton r. Braithwaite, 7 Mees. & W. 435; Ex parte MOLINE, 19 Ves. 216. §§ 145-146) NOTICE Of DISHONOR. 377 inform the indorser that the drawee, acceptor, or maker has neglect- ed to accept or pay the bill or note; that the contingency on which the drawer's or indorser's promise to pay depended has happened, and that his liability has become absolute. The express statement of the facts of presentment, demand, and non-acceptance or non- payment, in themselves, is unnecessary. These facts may be con- veyed by express terms or by necessary implication.^"" "I should myself doubt," says Parke, B.,^"° "whether we could go so far as to say that it ought to appear upon the face of the notice, 'by express terms or necessary implication,' that the bill was presented or dis- honored. It seems to me enough if it appear by reasonable intend- ment, and would be inferred by any man of business, that the bill had been presented to the acceptor, and not paid by him." And where no mercantile man, upon reading the notice, could possibly misunderstand its meaning, that is deemed within the meaning of reasonable intendment, and sufficient. Thus the doctrine of reasonable intendment includes such terms as "dishonored," because that word includes presentment and de- mand,"' or "protested," ^°' because that also shows presentment, demand, and refusal, or such other words coupled with a statement "B SOLAETB V. PALMER, 1 Bing. N. C. 194. 150 HEDGER V. STEAVENSON, 2 Mees. & W. 799. In this case the follow- ing letter from the plaintiff's attorney was held to be a sufficient notice: "Sir: I am desired by Mr. H. to give you notice that a promissory note for £99. ISs., payable to your order 2 months after the date thereof, became due yesterday, and has been returned unpaid; and I have to request you will please remit the amount thereof, with Is. 6d. noting, free of postage, by return of post. I am, &c., J. S." The holder of a bill of exchange, on the day after it became due, called at the office of J., the drawer. The latter was busy at the time, and the holder sent him the following note: "B.'s acceptance to J., £500, due 12th January, is unpaid. Payment to R. & Co. is requested before 4 o'clock." This was held to be sufficient notice, following Parke, B., in HEDGER V. STEAVENSON. PAUL v. JOEL, 3 Hurl. & N. 455, 4 Hurl. & N. 355. 1" Stocken v. Collins, 9 Car. & P. 653; WOODTHORPE v. LAWBS, 2 Mees. & W. 109; Edmonds v. Gates, 2 Jur. 183; Smith v. Boulton, Hurl. & W. 3. "8 MILLS V. BANK, 11 Wheat. 431; Cayuga Co. Bank v. Warden, 1 N. Y. 413; Grugeon v. Smith, 6 Adol. & E. 499; Everard v. Wilson, 1 El. & Bl. 801; De Wolf V. Murray, 2 Sandf. 166. 378 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 of non-payment as "Your bill is this day returned with charges," or ■'with charges or protested exchange." And a very good illustra- tion of how the doctrine of reasonable intendment enlarges the rule, is in the distinction between sufficient notice of dishonor of paper made payable at a bank or other particular place, and notice of dis- honor of paper made payable at large.^'° If made payable at a bank or other particular place, it is the business of the maker or ac- ceptor to have funds at that place when the paper becomes due. His failure to do so amounts to a dishonor, and it is sufficient to in- form the indorser of this failure. No specific statement of demand and presentment is necessary. A statement to the indorser of non- payment, if it appears that the paper was at the bank at the time of its maturity, is sufficient, because such a statement can mean noth- ing else than the dishonor of the paper. If, on the contrary, the paper is payable at large, a statement of presentment and demand is necessary, because a personal demand of the maker is one prereq- uisite of dishonor.^"" Such expressions as "due and unpaid,""' "that the note remains unpaid," ^°^ "notice of non-payment," ^*' have been held insufficient, because the fact alone that the acceptor or maker has not paid, the instrument is immaterial to the liability of the indorser. The legal fact which fixes the indorser's liability is the demand of payment of the parties and the dishonor of the bill.'"* It is a better practice to state that the party holding the bill looks to the person notified for payment, but this in itself is not indispensable. The reason is that this is implied in the very act of giving notice."" Notice that acceptance or payment has been demanded of the drawee, maker, or acceptor and refused by him is sufficient to charge the drawer or indorser; "» and it certainly can- 16B See Bigelow, Bills & N. p. 277. 180 Dole V. Gold, 5 Barb. 490. 161 Gilbert v. Dermis, 3 Mete. (Mass.) 493. 162 Pinkham ▼. Macy, 9 Mete. (Mass.) 174. 163 Townsend v. Lorain Bank, 2 Ohio St. 355. 164 Hartley v. Case, 4 Bam. & C. 339, 10 G. L. R. 606; Boulton v. Welsh, 3 Bing. N. C. 688, 32 0. L. E. 283; Strange v. Price, 10 AdoL & El. 125, 37 C. L. K. 88; Furze v. Sharwood. 2 Adol. & BL (N. S.) 388, 42 a L. K. 726. 165 Cowles V. Harts, 3 Conn. 517; Shrieve v. Duckham, 1 Litt (Ky.) 194; Warren v. Gllman, 17 Me. 360. 166 Fltchburg Ins. Co. v. Davis, 121 Mass. 121; Bank of U. S. v. Oarneal, 2 Pet. 543. ^§ 145-146) NOTICE OF DISHONOR. 379 not be argued that it is necessary to state what the law itself im- plies, — that the drawer or indorser is to be looked to to pay the in- strument if the acceptor or maker does not pay it.^°' By Whom Notice shovM ie Owen. In pointing out the persons and process by which knowledge is brought home to the party to be charged with liability, the law follows principles analogous to those used in formulating the ele- ments to be used in the notice itself. The aim is to establish a process such that a business man of ordinary experience, when pro- ceeded against, would know that he would have to pay to the hold- er the amount of the instrument. The first element of this process is the rule, already alluded to, that to change knowledge into legal notice the fact of dishonor must be brought home to the party to be charged by some person having an interest in enforcing the bill or note. Notice must be by a party or by some person authorized to give it. A notice by a mere stranger is not sufficient.^"* Properly authorized persons are an agent of the holder, who may give no- tice, because, in doing so, he represents and acts on behalf of his principal.^"' A notary,^'" acting in his official character, is an ex- ample of this. An attorney is also such an agent,^'^ and so a col- "7 Furze v. Sharwood, 2 Gale & D. 116, 2 Q. B. 416, 42 E. C. L. 726; Miers y. Brown, 11 Mees. & W. 372; Nelson v. Bank, 16 G. C. A. 425, 69 Fed. 798; SALOMON v. LEATHER CO. (N. J. Err. & App.) 31 Atl. 602. Notice of dis- honor in these words: "I hereby give notice that a bill for £50, at 3 months after date, by A upon and accepted by B, and indorsed by you, lies at" etc., "dishonored,"— was held sufficient without further intimation that plaintiff loolied to defendant for payment KING v. BICKLEY, 2 Q. B. 419. "8 OHANOINE v. FOWLEE, 3 Wend. (N. Y.) 173; Sewall v. Russell, Id. 276; Lawrence v. Miller, 16 N. Y. 235; Stanton v. Blossom, 14 Mass. 116; STEWART V. KENNBTT, 2 Camp. 177. In this case it was said by Lord Bllenborough that "the notice must come from the person who can give the drawer or indorser his Immediate remedy upon the bill; otherwise it is merely an historical fact." Brailsford v. Williams, 15 Md. 150. "1 Neg. Inst. L. § 162. Of sections 161, 165. "0 SHED V. BRETT, 1 Picli. (Mass.) 401; BANK OP DTICA v. SMITH, 18 -Johns. (N. Y.) 230; Renlck v. Eobbins, 28 Mo. 339; Swayze v. Britton, 17 Kan. 629. I'l Firth V. Thrush, 8 Barn. & C. 387. A bill of exchange, indorsed in blank, was left by the Indorsee at the office of an attorney to be presented. ■On presentment by the attorney the bill was dishonored. The attorney 380 PEESENTMEKT AND NOTICE OF DISHONOR. (Ch. 9 lecting bank is an agent for transmitting notices,^'^ or, more ac- curately speaking, is a principal for the purpose of transmitting notice of protest, and its notary who protests its paper is the agent.^''* But with these exceptions, due to the doctrine of agency that the agent is in law the same as the principal, the notice must emanate from some person who is a party to the bill. This does not mean the holder alone,^'* because, if the holder only could give notice, then he might secure his own rights against his immediate indorser, but the latter and every other party to the bill would be deprived of all remedy against the anterior indorsers and drawer, unless each of these parties should in succession take up the bill immediately on receiving notice of dishonor, — a highly unreasonable position.^'^ But by a party to a bill, so far as it relates to the per- son who gives notice, is meant some party who might be compelled to pay it to the holder, and who, upon taking it up, would have a wrote to the drawer on the following day, describing the bill, and stating that it had been dishonored, and subscribed his name and residence. This was held a sufficient notice of dishonor, though the attorney did not state in whose behalf he applied, nor where the bill was lying. WOODTHOKPB V. LA WES, 2 Mees. & W. 109. 172 Bank of U. S. v. Davis, 2 Hill. 451. "Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may himself give notice to his principal. If he give notice to his principal, he must do so within the same time as if he were the holder; and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an Independent holder." Neg. Inst. L. § 165. This is declaratory of the law in cases of agency for collection. HOWARD v. IVES, 1 Hill (N. Y.) 263; Church V. Barlow, 9 Pick. (Mass.) 547; SCOTT v. LIFFOED, 9 East, 347. The various branches of one bank are within the rule. Qode v. Bayley, 12 Mees. & W. 51; Prince v. Bank, 3 App. Gas. 332; Bank of U. S. v. Goddard, 5 Mason, 366, Fed. Cas. No. 917; Fielding & Co. v. Oorry, 46 Wkly. Rep. 97 (under Bills of Exchange Act). See Daniel, Neg. Inst § 992; Benj. Chalm. Bills & N. 100. 17 3 HOWARD V. IVES, 1 Hill (N. Y.) 263. 174 TINDAL V. BROWN, 1 Term R. 167; CHAPMAN v. KEANB, 3 Add. & El. 193. This case held that an indorsee who has indorsed over, and is not the holder at the time of maturity and dishonor, may give notice at such time to an earlier party, and, upon afterwards taking up the bill and suing such party, may avail himself of such notice. 176 West River Bank v. Taylor, 34 N. Y. 128. §§ 145-146) NOTICE OF DISHONOR. 381 right to reimbursement from the party to whom the notice is given.* The liability of the party must be fixed before he is competent to give notice, although he need not know it is fixed when he sends the notices out.^'° And the test between the party to the bill, in the sense we have given it, and the stranger to the bill, is whether the party giving or given the notice would be liable upon the instru- ment."'' The reason for this rule is that, unless this liability is fixed, there can be no inference that the person giving the notice looks to the party to whom it is addressed for payment; whereas, on the contrary, when the liability is fixed, and the holder gives the notice, it must mean, if it means anything, that he looks to the party notified for payment.^'' This rule excludes, not only the person who is in no wise a party to the instrument, but also the person who has been a party to the instrument and liable thereon, but whose liability is discharged. "The mischief would happen," says Parke, B.,"° "that there might be a bill with twenty indorsements which the holder might retain twenty days after its dishonor and then re- cover against the drawer, on a notice then given to him by the first indorsee, which that indorsee could not do. Such a notice would not be in good time if given by the first indorsee, and would there- fore be bad and not support an action by the last. The rule equally excludes the case of notice by an acceptor who never could sue him- self upon the bill after taking it up." To Whose Benefit Notice Accrues. Notice sent to an indorser or drawer accrues to the benefit of all parties subsequent to the party notified.! The holder may be satis- fled with giving notice to his immediate indorser, or he may give no- tice to the drawer and all the indorsers, and if he does it will ac- *TWs rules excludes the acceptor (HARRISON v. RUSCOB, 15 Mees. & W. 231) and the maker (Jagger v. Bank, 53 Minn. 386, 55 N. W. 545). There are, however, cases to the contrary, and as matter of authority Mr. Daniel maintains that an acceptor may give notice, whatever the merit of the doctrine. Daniel, Neg. Inst. § 990. See Neg. Inst. L. § 161. "8 JENNINGS V. ROBERTS, 24 Law J. Q. B. 102. "'HARRISON V. RXJSCOE, 15 Mees. & W. 231. "8 East V. Smith, 4 Dowl. & L. 744. "'HARRISON V. RTJSCOE, 15 Mees. & W. 231; Turner v. Leech, 4 Barn. & Aid. 451; ROWE v. TIPPER, 13 C. B. 249. t See Neg. Inst. L. §§ 163. 164. 382 PRESENTMENT AND NOTICE OP DISHONOR. (Ch. & crue to the benefit of each indorser."" This rule is the natural out- growth of the rule that notice need not be given by the holder of a bill, but can be given by any party to the instrument. For, as has just been said, the holder may only seek to secure his rights against his immediate indorser by regular notice to him alone. And in or- der, therefore, that the latter and every other party to the instru- ment may not be deprived of all remedy against anterior indorsers and the drawer, it is prudent in each party who receives a notice to give immediate notice to those parties against whom he may have the right to claim.^'^ Whether there be few or many indorsers, the duty of each is the same. It is to transmit the notice from one indorser to another, in the usual order of their indorsements.^'^ And, in turn, as notice is received by each indorser, it accrues to the benefit of all subsequent parties. Thus, for example, if the hold- er notifies his immediate indorser, and he, in turn, notifies his im- mediate indorser, and so on, through the chain of indorsers, up to the second and first indorser, the first indorser cannot object that he has received no notice from the holder. The holder can avail himself of the notice given the first indorser by the second indorser. It is sufficient if the first indorser had notice from any subsequent holder of the note of the default of the maker, and that he would be looked to for payment.^'* 180 Jameson v. Swinton, 2 Taunt. 224; Hilton v. Shepherd, 6 Bast, 14, note; STAFFORD v. YATES, 18 Johns. (N. Y.) 327; Morgan v. Van Ingen, 2 Johns. (N. Y.) 204; Spencer v. Ballon, 18 N. Y. 327. Note— It Is the rule to notify all indorsers, e. g. indorsers for collection; accommodation drawer or indorser; indorsers of bills or notes payable on demand; each partner, as well as the firm, by name; each of the joint indorsers; persons representative, if any; if none, then some authorized person at the family residence; the bankrupt personally; and to the assignee of the bankrupt. For cases, see Tied. Com. Paper, § 336, and cases cited. 181 Bayley, Bills, p. 256; C5BAPMAN v. KEANE, 3 Adol. & El. 193. 182 Dobree v. Eastwood, 3 Oar. & P. 250; BANK OP UTICA v. SMITH, 18 Johns. 230; Mead v. Engs, 5 Cow. 303; West River Bank v. Taylor, 34 N. Y. 128; Morgan v. Woodworth, 3 Johns. Oas. 89. 183 STAFFORD v. YATES, 18 Johns. (N. Y.) 327; Spencer v. Ballon, 18 N. Y. 327; LYSAGHT v. BRYANT, 9 C. B. 46; Wilson v. Swabey, 1 Starkie, 34; Marr v. Johnson, 9 Yerg. 1; Triplett v. Hunt, 3 Dana, 126; Stanton V. Blossom, 14 Mass. 116; Bank of United States v. Goddard, 5 Mason, 366, Fed. Cas. No. 917. §§ 145-146) NOTICE OF DISHONOR. 383 To Whom Notice should ie Omen. The question to whom notice should be given is involved in the discussion of the method of giving notice, which will be taken up in the next paragraph. In general, however, it may be said that no- tice of dishonor may be given to the party himself or to his agent in that behalf.^** If the party is dead, but his death is unknown to the party giving notice, notice sent as if the party to be notified were living is sufficient/*" If his death be known, the notice must be given to a personal representative, if such there be, and if with reasonable diligence he can be found.^" If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased; ^^'' but if the deceased left a will, and the executor named has not qualified, or has renounced his trust, notice may be sent either to the person named or to the last resi- dence or place of business of the deceased.^'' Where the parties to be notified are partners, notice to any one partner is notice to the firm, even though there has been a dissolution.^*' Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others.^"" 184 HOtlSEGO v. COWNB, 2 Mees. & W. 348; ALLEN v. EDMUNDSON, 2 Exdi. 719, 724; Vlale v. Michael, 30 Law T. (N. S.) 463; Fassin v. Hub- bard, 55 N. Y. 465; Lake Shore Nat. Bank v. Colliery Co., 51 Hun, 63, 3 N. Y. Supp. 771. See Neg. Inst. L. § 168. i86Maspero v. Pedesclaux, 22 La. Ann. 227; Linderman v. Guldin. 34 Pa. St. 54. 186 MASSACHUSETTS BANK v. OLIVER, 10 Cush. (Mass.) 557; Oriental Bank v. Blake, 22 Pick. (Mass.) 206; Cayuga Bank v. Bennett, 5 Hill (N. Y.) 236. See Neg. Inst. L. § 169. As holding that a notice of dishonor mailed with the address, "to the estate of H. O., deceased," will not be such notice as to charge the executor, see MASSACHUSETTS BANK v. OLIVER, supra; Cayuga Bank v. Bennett, supra. 187 STEWART T. EDEN, 2 Gaines (N. Y.) 121; MERCHANTS' BANK v. BIRCH, 17 Johns. (N. Y.) 25; Dodson v. Taylor, 56 N. J. Law, 11, 28 Atl. 316. See Neg. Inst. L. § 169. 188 Goodnow V. Warren, 122 Mass. 79. 189 Hubbard v. Matthews, 54 N. Y. 50; Dabney t. Stidger, 12 Miss. 749; Coster V. Thomason, 19 Ala. 717; FOURTH NAT. BANK y. HBUSCHEN, 52 Mo. 207. See Neg. Inst. L. § 170. i»» WILLIS v. GREEN, 5 Hill (N. Y.) 232; State Bank v. Slaughter, 7 Blackf. (Ind.) 133; People's Bank v. Keech, 26 Md. 521. See Neg. Inst L § 171. 384 PRESENTMENT AND NOTICE OF DISHONOR. (Oil. 9 If the party to be notified is a bankrupt, but no assignee has been appointed, notice to the bankrupt is sufficient; ^°^ if an assignee has been appointed, notice may probably be given either to the bank- rupt or to the assignee.^"^ Method of Owing Notice. The second element of process relates to the method of actually giving notice, v^hich presents itself in two aspects. The first is giv- ing notice verbally or in vrriting; the second is of serving the no- tice in vyrriting personally or serving it by maU. While the requi- sites of verbal notices are not clearly stated by the courts, it seems to be agreed that, where no statute intervenes, a verbal notice is sufficient.^" It also seems to be enough if, from the conversations between the parties, it can be ascertained as a fact that the party against whom the liability is sought to be enforced well understood what instrument was referred to. The courts are less strict in con- struing a verbal notice than in construing a written one. This is because a verbal notice communicated to the indorser, which calls forth a conversation about the instrument in question, is very differ- ent from a written notice sent to the indorser. The latter consti- tutes the only means which the party has to inform the drawer and indorser of the particular instrument dishonored. With a verbal notice, however, the drawer or indorser has full opportunity of in- forming himself fully of the character of the instrument and of the liability sought to be enforced against him.^** It is almost need- less to say that the verbal notice must be given to the indorser per- i»i Ex parte MOLINE, 19 Ves.' 216. 182 Callahan v. Bank, 82 Ky. 231; AMERICAN NAT. BANK v. MANUFAC- TURING CO., 94 Tenn. 624, 30 S. W. 753. House v. Bank, 43 Ohio St. 346, 1 N. E. 129, contra. See Rand. Com. Paper, § 1243; Neg. Inst. L. | 172. 103 Cuyler v. Stevens, 4 Wend. 566; Cayuga Co. Bank v. Warden, 1 N. Y. 413; Woodin v. Foster, 16 Barb. (N. Y.) 146; GILBERT v. DENNIS, 3 Mete. (Mass.) 495; TINDAL v. BROWN, 1 Term R. 167; Glasgow v. Pratte, 8 Mo. 336; Merrltt v. Woodbury, 14 Iowa, 299; Boyd v. CHty Sav. Bank, 15 Grat. 501; Pierce v. Schaden, 55 Cal. 406. See Neg. Inst. L. § 167. As to notice by telephone, C. Q Thompson & Walkup Co. v. Appleby, 5 Kan. App. 680, 48 Pac. 933. 194 Metcalfe v. Richardson, 11 C. B. 1011; Phillips v. Gould, 8 Car. & P. 355; Thompson v. Williams, 14 Cal. 162. §§ 145-146) NOTICE OF DISHONOR. 385 sonally, or to some suitable person at his residence or place of busi- ness.^"' Mere hearsay does not create a binding liability.^"' The essentials of a written notice have been already described- Its service may be made by delivering it personally to the person to be charged,^" or by leaving it at his dwelling place or place of busi- ness,^°* or it may be served upon him by mail. The object of the courts is to formulate a set of rules which, if followed, will render it reasonably certain that the notice of dishonor will reach the hand of the drawer and indorser, and charge him with notice or knowl- edge of his liability upon the instrument.^'' To attain this end the legislatures of many states have pointed out methods of service which, if followed, are of course legal and proper in the jurisdictions in which those legislatures are sovereign.^"" But, in the absence 186 A person -who was sent by the holder of a dishonored bill called at the house of the drawer the day after it became due, saw the drawer's wife,, and told her that he had brought back the bill that had been dishonored. She said she knew nothing about it, but would tell her husband of it when he came home. The party then left, leaving no written notice. It was held that suf- ficient notice had been given. HOUSEGO v. COWNE, 2 Mees. & W. 348;. ALLEN v. BDMXJNDSON, 2 Exch. 719, per Parke, B. i96Woodin V. Foster, 16 Barb. 146. 187 Smedes v. Utica Bank, 20 Johns. 372; Louisiana State Bank v. Howel,. 6 Mart. (N. S.) 506; Shepard v. Hall, 1 Conn. 329; Hartford Bank v. Stedman,. 3 Conn. 489; BANK OF COLUMBIA v. LAWRENCE, 1 Pet. 578; RANSOM V. MACK, 2 Hill, 590; HOBBS v. STRAINE, 149 Mass. 212, 21 N. E. 365, Johns. Cas. Bills & N. 202. 198 BANK OF COLUMBIA v. LAWRENCE, 1 Pet. 578; Nevius v. Bank, 10 Mich. 547; Sanderson v. Reinstadler, 31 Mo. 483; Grinman v. Walker, 9 Iowa, 426. As to question of due diligence in ascertaining residence, see Bank of Utica v. Bender, 21 Wend. (N. Y.) 643. In the case of ALLEN V. EDMUNDSON, 2 Exch. 719, it appeared that the holder of an overdue note of exchange went during business hours to the counting house of the drawer, for the purpose of giving notice of dishonor; and, finding the counting- house door shut, he knocked at the door, and, no one answering, he came away without leaving any notice. It was held that these facts did not sup- port an allegation of due notice, but were equivalent to a dispensation of notice, and ought to have been so pleaded. "9 Bank of U. S. v. Corcoran, 2 Pet. 121; Carolina Nat. Bank v. WaUace, 13 S. 0. 347; Manchester Bank v. Fellows, 28 N. H. 302; Bradley v. Davis, 26 Me. 45; SHBLBURNE FALLS NAT. BANK v. TOWNSLEY, 107 Mass. 444. 200 "It may in all cases be given by delivering it personally or through the mails." Neg. Inst. L. § 167. Of. sections 177, 179. NEG.BIIXS.— 25 386 PRESENTMENT AND NOTICE OF DISHONOR, (Ch. 9 of statutory regulation, the methods of service adopted by the courts are divided into two classes, according as the party giving notice and the party to whom it is given reside in the same or different places. There are various judicial interpretations of the term "res- idence in the same place." One, dependent upon slight authority, is that the corporate limits of the village, town, or city define the limits as to the requirements of personal notice,^"^ meaning that per- sons residing within those limits are co-residents and without are non-residents as to each other. The second is that all persons art to be regarded as co-residents who receive their mails through the same post office, because the post office can only be used in the serv- ice of a notice as a means of transmission and not of deposit. This means that the drawer and indorser cannot be subjected to the ud certain chance of getting mail, but the holder must exert himself to make personal service or its equivalent upon him.""" But this rule is qualified by the further one that where the drawer or indorser has no residence and no regular place of business in the city or town where the holder resides, or the instrument is payable, he may be treated as a non-resident and served by mail.^"' It being deter- mined whether the party giving the notice and the party to whom' it is given are residents of the same or different places, the follow- ing rules prevail: (1) If of the same place, the service must either be personal "* or 201 Barret v. Evans, 28 Mo. 333. 202 Ireland v. Kip, 10 Johns. (N., T.) 490, 11 Johns. (N. Y.) 231; SHEL- BUENE FALLS NAT. BANK v. TOWNSLBY, 102 Mass. 177, 107 Mass. 444; Farmers' & M. Bank v Battle, 4 Humph. (Tenn.) 86; Barker v. Hall, Mart. & Y. (Tenn.) 183; Forbes v. Omaha Nat. Bank, 10 Neb. 338, 6 N. W. 393. As holding that notice of dishonor sent through the mail will not be sufllcient where both parties (sender, and the one to whom the notice is sent) are residents of the same town, see SHELDON v. BENHAM, 4 Hill (N. Y.) 120. As holding that a notice of dishonor mailed to an indorser, and received the day after that on which the note became due, was sufficient, even wliere the postoffice was in the same town, see SHAYLOR v. MIX, 4 Allen (Mass.) 351. 208 BANK OF COLUMBIA v. LAWRENCE, 1 Pet 578; Bank of U. S. v. Norwood, 1 Har. & J. (Md.) 423; Gist v. Lybrand, 3 Ohio, 307; Jones v. Lewis, 8 Watts & S. 14; Walker v. Bank of Missouri, 8 Mo. 704. 2 04 Bowling V. Harrison, 6 How. 248; Williams v. Bank of U. S., 2 Pet. 96; Boyd v. City Sav. Bank, 15 Grat. 501; Peirce v. Pendar, 5 Mete. (Mass.) ^§145-146) NOTICE OF DISHONOR. 387 else be made by leaving at his place of domicile or of business.^"" But, as an exception to the foregoing rule, the notice may be served by mail in the following instances: (a) If the holder can prove that the party to be charged received the notice in due time.^°° (b) If the instrument is protested by a notary at a place different from that of the party's place of residence.""^ (c) In large towns and cities, where letter carriers are employed to deliver letters, at the residences or places of business of parties who usually receive their letters through their hands, provided the notice be mailed early enough to reach the drawer or indorser in due time."^ (d) If there are several post offices in the same town, between which there is a regular communication by mail.^°° (e) If it is the certain, clear, definite custom of a bank, in giving notice, to serve notices by mail, and this is known to the party.^^" (2) If the parties reside in different places, or the drawer or in- dorser sought to be charged resides at a place other than that at 352; Jolin v. City Nat. Bank, 62 Ala. 529; Vance v. Collins, C Cal. 435; Davis V. Gowen, 19 Me. 447. 205 Ireland v. Kip, 10 Johns. 491; Bank of Columbia v. Lawrence, 1 Pet. 578; Sanderson v. Keinstadler, 31 Mo. 483; Nevius v. Bank, 10 Mich. 547; Orinman v. Walker, 9 Iowa, 426. "It is well settled that, when the indorser resides at the place of the presentment and dishonor of the note, the notice must be served on him personally, or, what is deemed equivalent, must be left at his dwelling or place of business." Comstock, J., in VAN VECHTEN V. TRYN, 13 N. Y. 549. 2«6 Cabot Bank v. Warner, 10 Allen, 524; Peabody Ins. Co. v. Wilson, 29 W. Va. 547, 2 S. E. 888; Phelps v. Stocking, 21 Neb. 443, 32 N. W. 217. 20' Hartford Bank v. Stedman, 3 Conn. 489; Warren v. Oilman, 17 Me. 360; Eagle Bank v. Hathaway, 5 Mete. (Mass.) 212. 208 Shoemaker v. Mechanics' Bank, 59 Pa. St. 83; Walters v. Brown, 15 Md. 292; Dobree v. Eastwood, 3 Oar. & P. 250; SMITH v. MULLETT, 2 Camp. 208. Not unless addressed to street and number. Benedict v. •Selimieg, 13 Wash. 476, 43 PaC. 374. 200SHAYLOR v. MIX, 4 Allen (Mass.) 351; Curtis v. Bank, 6 Blackf. (Ind.) 312; Brlndley v. Barr, 3 Har. (Del.) 419; Gist v. Lybrand, 3 Ohio, 307; Bell V. Hagerstown Bank, 7 Gill, 216. 210 Thorn v. Eice, 15 Me. 263; Bowling T. Harrison, 6 How. 248; Carolina Nat Bank V. Wallace, 13 S. C. 347. 388 PRESENTMENT AND NOTICE OF DrSHONOB. (Ch. 9* which the instrument is payable,*^' the holder may make service by depositing the notice in the post oflSce,^^" inclosed in a securely closed post-paid wrapper, and addressed to the post office at or near- est to the party's place of residence, unless he is accustomed to re- ceive his letters at another post oflflce, in' which case it should be directed thereto.*^* The following are the specific rules as to the address: (a) If the residence of such person is in a city or large town, it is. probably suflflcient to address to the city generally, and by his full name, unless it appears that the name is a common one in that city or town.''^* 211 See the case of CHOUTEAU v. WEBSTER, 6 Mete. (Mass.) 1, in which. a citizen of Boston indorsed a note payable at a New Yorli banlj, whicli the maker did not pay at maturity. The Indorser was at the time in Wash- ington, as a senator, and notice of non-payment was mailed in due time at New York, addressed to him at Washington. The indorser had a business agent in Boston, but the holder was ignorant of the fact. The notice was- held sufficient. Depositing in any letter box in charge of the post-office de- partment is sufficient. Johnson v. Brown, 154 Mass. 105, 27 N. E. 9&1;. Casco Nat Bank v. Shaw, 79 Me. 376, 10 Atl. 67; Wood v. Callaghan, 61 Mich. 402, 28 N. W. 162. See Neg. Inst. L. § 177. 212 BUSSAKD V. LEVERING, 6 Wheat. 102; Munn v. Baldwin, 6 Mass. 316; Miller v. Hackley, 5 Johns. (N. Y.) 375; Friend v. Wilkinson, 9 Grat.. (Va.) 31; SAUNDERSON v. JUDGE, 2 H. Bl. 510; Phelps v. Stocking, 21 Neb. 443i 32 N. W. 217; Wooley v. Lyon, 117 111. 244, 6 N. B. 885. 213 BANK OP COLUMBIA v. LAWRENOB, 1 Pet. 582; MERCER v. LAN- CASTER, 5 Pa. St. 160. In this case it was held that a notice of dishonor was sufficient, if addressed to an indorser at the postoffice where he is in the haibt of receiving his mail, although such office is not nearest to his^ residence. Citizens' Nat. Bank v. Cade, 73 Mich. 449, 41 N. E. 500; North- western Coal Co. V. Bowman, 69 Iowa, 150, 28 N. W. 496. Where theffe are- two postoffices in the town where the indorser resides, it will be sufficient, prima facie, if notice be addressed to him at the town generally. This- may, fiowever, be rebutted by proof of the indorser's custom of receiving his letters at one office, and by proof that the holder might, by reasonable diligence, have ascertained this. MORTON v. WESTCOTT, 8 Cush. (Mass.). 425. 214 True V. Collins, 3 Allen, 440; Morse v. Chamberlin, 144 Mass. 406, 11 N. E. 560; Riggs v. Hatch, 16 Fed. 840. This doctrine is disputed. WALTER V. HAYNES, Ryan & M. 149. In this case it was held that a letter directed, "Mr. Haynes, Bristol," containing notice of the dishonor of a bill, was proved. §§ 145-146) NOTICE OF DISHONOR. 389 (b) If the party live at one place and receive his letters at an- other post oflBce, notice may be sent to either."^" (c) Mailing to any address given by the drawer or indorser for that purpose will be sufficient.^^° (d) If the party to be charged, unknown to the holder, changes his place of residence after drawing or indorsing the bill or note, the holder may nevertheless still address the notice to his former place of residence, provided he in good faith supposed he was ad- dressing it to the actual place of residence of such party."' to have been put in the postoffice. It was held that this was not sufficient proof of notice, the direction being too general to raise a presumption that the letter reached the particular individual charged. See, however, MANN V. MOORS, Eyan & M. 249. 216 Bank of U. S. v. Carneal, 2 Pet. 549; Williams v. Bank of U. S., Id. 96. If sojourning in another place, notice may be sent there. CHOUTEAU V. WEBSTER, 6 Mete. (Mass.) 1; BANK OP COMMERCE v. CHAMBERS, 14 Mo. App. 152. See Neg. Inst. h. § 179, subd. 3. 218 Importers' & Traders' Nat. Bank v. Shaw, 144 Mass. 424, 11 N. E. 666; Bank of America v. Shaw, 142 Mass. 291, 7 N. E. 779. As where an address is added to the signature. Burmester v. Barron, 17 Q. B. 828; Morris v. Husson, 4 Sandf. (N. Y.) 93. It has been held that in such case notice must be sent to that address. BAETLETT v. ROBINSON, 39 N. Y. 187. Such is the provision of Neg. Inst. L. § 179. 2" See Munn v. Baldwin, 6 Mass. 316; Bequa v. Collins, 51 N. Y. 148; Ward v. Perrin, 54 Barb. 89. In BEEEIDGB v. FITZGEBALD, L. R. 4 Q. B. C39, a bill was shown to have been drawn on a company, and accepted by the manager. The defendant and another director indorsed. At maturity the bill was not paid, as the affairs of the company were being wound up. The plaintiff did not know the defendant's place of residence, so he sent the notice to him at the company's office. The defendant had for some timetceased to come there, since the company had become embarrassed. The notice was held to be good under the circumstances. In the case of RAWDON V. REDFIELD. 4 Sandf. (N. Y.) 178, it was shown that at the date of the note the indorser lived in Troy, but before maturity of the note he moved to New York. His name was not in the directory, however, and the notary who protested the bill in New York, being Informed by the holder and acceptor, that Troy was the place of residence of the indorser, mailed him a notice to that place. This was held to be sufficient notice. In the case of BBALB v. PAREISH, 20 N. Y. 407, 411, it was held by Grover, J., that "inability to discover the residence of the indorser excuses the proper service only so long as such inability continues." ♦ 390 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 ■Time of Gi/oing Notice. The third element of process relates to the time at which notice is given. Notice of dishonor cannot be given before actual dis- honor of the instrument takes place."^* This is because the law merchant insists upon a legal presentment and an actual dishonor before it fixes the liability upon the indorser. Without these the notice of dishonor is a meaningless form. The fact that the bill is unpaid is immaterial. It must be dishonored before the indorser can be liable, and hence prerequisites to the issuing of the notice are the legal formalities necessary to create a dishonor."" But, the dishonor being once fixed, the holder has a reasonable time to take steps to fix the liability of the parties responsible over to him upon the bill or note. The meaning of this term "reasonable time" has become established by universal usage. He may, it is true, give notice at once,'"° but all that is required of him is reasonable diligence. Eeasonable diligence is regulated by practical conven- ience and the usual course of business. Between parties living in the same place, the holder has until the expiration of the following business day to give notice. He may give it within banking hours at the bank, within business hours at the countinghouse or place of business,''" and within the hours of rest at the dwelling place."" Between parties living in different places, the notice must be put into the post office in time to go by a mail of the day next succeed- ing the last day of grace, or the first possible or practicable mail after the day of maturity."* The rule at first required that notice 218 Jackson v. Richards, 2 Caines, 343. . . 219 Nicholson v. Gouthit, 2 H. Bl. 609; Jackson v. Richards, 2 Caines, 843. 220 Ex parte MOLINB, 19 Ves. 216; Bank of Alexandria v. Swann, 9 Pet. 33; LINDEXBERGER v. BEALL, 6 Wheat. 104. See Neg. Inst. L. § 173» 221 ALLEN V. EDMONSON, 2 Oar. & K. 547; Adams v. Wright, 14 Wis. 408; GARNETT v. WOODOOCB;:, 6 Maule & S. 44; PARKER v. GORDON, 7 East, 385. See Neg. Inst. L. § 174. Ante, p. — . 222 In the case of JAMESON v. SWINTON, 2 Taunt. 224. the bill was shown to hare been dishonored on July 10th. At 4 o'clock p. m. of the same day notice was given to the last indorser. At 8 or 9 o'clock on the night of the 11th this last indorser gave the defendant notice. It was held that .the last indorser gave notice soon enough to entitle him to recover against the defendant. 223 TIKDAL V. BROWN, 1 Term R. 167; Darbishire v. Parker, 6 East, 3- Lenox v. Roberts, 2 Wheat. 373; STAINBACK v. BANK OF VIRGINIA, §§ 145-146) NOTICE OF DISHONOR. 391 of the default of the maker or acceptor should be put into the post oflBce early enough to be sent by the mail of the day next succeed- ing the last day of grace. "^^ But it often happened that the mail of the day succeeding the day of' default went out at unreasonable hours, or before a reasonable time could be had for depositing the notice, as, for example, soon after midnight, or at a very early hour in the morning,^'^^ and in such cases was sometimes made up and closed the evening preceding. For this reason the rule universally adopted has been that the notice, in order to charge the drawer or indorser, must be deposited in the post office in time to be sent by mail of the day succeeding the day of the dishonor, provided the mail of that day be not closed at an unreasonable hour, or before early and convenient business hours.^^° In case of indorsers, each 11 Grat. (Va.) 260. As holding that a letter received on Sunday need not be opened till Monday, so that notice of dishonor will be held to have been received on that day, and that transmitting snch notice by next day's post is sufficient diligence, see 2 Barn. & Aid. 501, note a. In Gladwell v. Turner, L. R. 5 Exch. 59, all the parties to the bill were shown to reside in London. On the morning after the dishonor of the bill, the plaintiff, who did not linow the residence of the defendant (the drawer), applied to S. for informa- tion. The latter was not at home, and the plaintiff did not obtain his information until 5:30 p. m. of the same day. He posted his notice of dis- honor after 6 p. m., and it was not received that night. It was held that, under the circumstances, the notice was not too late. See Neg. Inst. L. §§ 175, 176. 224 Bank of Alexandria v. Swann, 9 Pet. 33. 225 GEILL v. JEREMY, Moody & M. 61. In this case, it was held that a party receiving notice of dishonor of a bill of exchange need not give notice to the party above him till the next post after the day on which he himself receives the notice, although he might easily give it that day, and there is no post on the following day. Mitchell v. Cross, 2 R. I. 437; West v. Brown, 6 Ohio St. 545; Chicli v. Pillsbury, 24 Me. 458. 228Fullerton v. Banli of U. S., 1 Pet. 605-C08; Eagle Bank v. Chapin, 3 Pick. ISO; Talbot v. Clark, 8 Pick. 51; Carter v. Burley, 9 N. H. 559-570; Farmers' Bank of Maryland v. Duvall, 7 Gill & J. 79; Freeman's Bank v. Perkins, 18 Me. 292; Mead v. Engs, 5 Cow. 303; Sewall v. Russell, 3 Wend. 276; Brown v. Ferguson, 4 Leigh, 37; Dodge v. Bank of Kentucky, 2 A. K. Marsh. 610; Hickman v. Ryan, 5 Lift. 24; Hartford Bank v. Stedman, 3 Conn. 489; BREXZER v. WIGHTMAN, T Watts & S. (Pa.) 264. The party notifying is not bound to send the notice by mail, but, if he chooses other means of conveyance, the notice must be given within the time within which it would have been received In due course of mail. Darbishire v. 392 PRESENTMENT AND NOTICE OF DISHONOE. (Ch. 9 party to a bill or note has the same time after receipt of notice, for giving notice to other parties, that was allowed to the holder after default, and the time in regard to them is governed by the princi- ples we have just stated.^^' This rule, however, has its limitations. If the holder of a bill of exchange or promissory note wishes to avail himself of a notice of dishonor given by him to a remote indorser, he must give it within the time within which he is by law required to give it to his immediate indorser. And he cannot avail himself of his laches to gain another day.'"'^ If he could, the consequence which has already been pointed out would follow, namely, that, if there were twenty indorsers, he would have twenty days within which to give notice to the first of them. The holder has his day to give notice to any party he may seek to charge, and each of the prior indorsers in turn has his day. Each has one day to give notice to all parties against whom he intends to enforce his remedy."' Parker, 6 East, 3; BANK OF COLUMBIA v. LAWRENCE, 1 Pet. 578; JAR- VIS V. MANUFACTURING CO., 23 Me. 287. See Neg. Inst. L. § 175, subd. 2. 227 SHELDON V. BENHAM, 4 Hill (N. Y.) 129; HOWARD v. IVES, 1 Hill (N. Y.) 263; LAWSON v. FARMERS' BANK, 1 Ohio St. 206, Johns. Cas. Bills & N. 203; SHELBURNE FALLS NAT. BANK v. TOWNSLEY, 102 Mass. 177; SIMPSON v. TURNEY, 5 Humph. (Tenn.) 419; SEATON v. SCOVILL. 18 Kan. 435; BRAY v. HAD WEN, 5 Maule & S. C8. See Neg. Inst. L. | 178. Cf. § 165. 228 Brown v. Ferguson, 4 Leigh (Va.) 37; TURNER v. LEECH, 4 Barn. & Aid. 451. In this case, Abbott, C. J., said: "The plaintiff, who ought to have received notice of the dishonor of the bill of exchange from B. on the 5th September, did not, in fact, receive notice till the 8th, and there- fore he was clearly discharged by the laches of the holder. Then can he, by paying the bill, place the prior indorsers in a worse situation than that in which they would otherwise have been? I think he cannot do so; and that. In paying this bill, he has paid it in his own wrong, and cannot be allowed to recover upon it against the defendant." Kennedy v. Geddes, 8 Port. (Ala.) 263; Stix v. Mathews, 63 Mo. 371; Carter v. Burley, 9 N. H. 558. It was decided in the case of FITOHBURG BANK v. PERLEY, 2 Allen, 433, that an indorser of a dishonored note will be rendered liable to a subsequent indorser, if such indorser, having received a duplicate notice from notary of holder, for the prior indorser, mailed it, with the proper address, on the day of its receipt, although it did not reach its destina- tion as soon as if it had been sent by the holder or notary. 22 9 In an action by the fourth against the first indorsee of a note, all the parties to which resided in London, it was shown that the plaintiff received |§ 145-146) NOTICE OF DISHONOK. 393 -The holder may avail himself of a notice duly given by any other party to a bill, but this notice must be given in due time by the par- ty to the bill, by which is meant due time if he himself were serv- ing."" notice of dishonor from his Indorsee on the 20th, and gave notice to his im- mediate indorser by a letter mailed on the evening of the 21st, but so late that it was not delivered until next morning. This was held to be such laches as to discharge all prior Indorsers, though, in the course of the 22d, notice was given to second Indorsee and to defendant. SMITH v. MULr- LETT, 2 Camp. 208. In the case of HOWARD v. IVES, 1 Hill (N. Y.) 263, St was held that "the next day" is to be construed as meaning the next business day, so that, in case of protest on Saturday, notice will be in time if mailed on the following Monday. The indorsee of a bill of exchange left It with his hauliers, who presented It for payment on the 4th, when it was dishonored, and on the 5th they returned it to the Indorsee, who gave notice of the dishonor to the drawer, on the 6th, by post. Such notice was held to be reasonable. SCOTT v. LUFFORD, 9 East, 347. 230 ROWE V. TIPPER, 13 C. B. 249; Dobree v. Eastwood, 3 Car. & P. 250. 394 PRESENTMENT AND NOTICE OF DISHONOR, (Ch. 9 EXCUSES FOB. FAILURE TO PRESENT OB GIVE NOTICE. 147. Presentment and notice of dishonor are dispensed ■with in. the case of a dra-wer or indorser whose duty it is^ as betw^een himself and the prior parties to the instru- ment, to pay it at maturity.^' 147a. Presentment is dispensed -with -when, after the exercise of reasonable diligence, it cannot be made; and notice of dishonor is dispensed -with when, after the exer- cise of reasonable diligence, it cannot be given, or does not reach the parties to be charged. 147b. Presentment and notice of dishonor may be dis- pensed -with by -waiver, express or implied. The foregoing are common instances among the many in which presentment and notice of dishonor are dispensed -with. They rest upon somewhat different reasons, which it is our purpose to explain. Where the drawer, through his own fault, has no reason to ex- pect the bill will be paid, it is unjust to cast upon the holder the duty of presentment and notice.^ ^^ These are steps taken to fix the drawer's liability, and need only be taken when the bill was given in good faith, and after proper provision for its acceptance 231 2 Ames, Cas. Bills & N. 813. 232 TERRY V. PARKER, 6 Adol. & E. 502. In this case it was held that If the drawer of a bill of exchange have no effects in the hands of the drawee at the time of drawing the bill, and of its maturity, and have no ground to expect that it will be paid, it is not necessary to present the bill at maturity; and if it be presented two days after, and payment be refused, the drawer is liable. Mobley v. Clark, 28 Barb. (N. Y.) 390; Kinsley v. Robinson, 21 Pick. (Mass.) 327; GAUNT v. THOMPSON, 7 C. B. 400. "The law requires notice to be given for this reason, because it is presumed that the bill is drawn on account of the drawee's having effects of the drawer in his hands; and, if the latter has notice that the bill is not accepted or not paid, he may withdraw them immediately. But, if he has no effects in the other's hands, then he cannot be injured for want of notice." Buller, J., in BICKERDIKE v. BOLL- MAN, 1 Term R. 405. For a holding to the same effect, by the same judge, see Corney v. Da Costa, 1 Esp. 302. See, also, DENNIS v. MORRIOE, 3 Esp. 158; Sands v. Clarke, 8 O. B. 751. §§ 147-1 47b) EXCUSES foe failure to pbesent or give kotice. 395 or pajment had been made on the drawer's part. He has made a contract with the holder, one element of which was that the drawee would honor his bill when presented. And, if it can be shown that there could have been no reasonable expectation of this, the drawer can suffer no loss or injury from the failure of the holder to make a presentment to the drawee which would be fruitless if made. Notice of dishonor as to him would be an empty form, which the law will not require at the hands of the holder. But these reasons do not apply to excuse presentment and notice as to the indorsers, unless the indorsers have indorsed for. the accommodation of the drawer, with knowledge of the fact that the drawer has no right t» expect acceptance or payment.^^^ . For if the indorsers know noth- ing of Uie relation between the drawer and drawee, they may re- quire presentment and notice, although the drawer cannot.^'* A drawer or indorser who is the accommodating party may insist upon presentment and notice; ^^^ but not if he is the accommodated par- ty, inasmuch as he then can have no recourse against the acceptor or maker."^" Presentment and notice are not dispensed with where the drawee,, though he has no funds of the drawer' in his hands, has promised to accept the bill for the drawer's accommodation,^ '^ nor because the 233 French v. Bank of Columbia, 4 Cranch, 141; LEACH v. HEWITT, 4 Taunt. 731, 234 Carter v. Flower, 16 Mees. & W. 743; Brown v. MafEey, 15 East, 216; Bogy V. Kell, 1 Mo. 743; Warder v. Tucker, 7 Mass. 449; Rea v. Dorrance, 18 Me. 137. In the case of TURNER v. SAMSON, 2 Q. B. Div. 23, Mellish, L. J., said: "It appears beyond all dotibt that the bill was an accommodation bill, and that the drawer and the other defendants, as indorsers, all signed th& bill for the accommodation of S. The question is, in substance, whether the defendant (the appellant) was entitled to notice. He was plainly not the per- son who was to take up the bill, and he had a right to suppose that another person would see that it was taken up. It appears to me that the defendant was in the same position as If the acceptor had been the person who was ultimately liable to pay." 236 Cory V. Scott, 3 Barn. & Aid. 619; TURNER v. SAMSON, 2 Q. B. Div, 23; Miser v. Trovinger, 7 Ohio St. 281. 236 Ex parte Heath, 2 Ves. & B. 240; Miser v. Trovinger, 7 Ohio St. 281- Rhett V. Poe, 2 How. 457; AMERICAN NAT. BANK v. MANUFACTURING CO., 94 Tenn. 624, 30 S. W. 753. See Neg. Inst. L. §§ 140, 186, subd. 3. 237 Walwyn v. St. Qnintin, 1 Bos. & P. 652; Adams v. Darby, 28 Mo. 102; Oliver v. Bank of Tennessee, 11 Humph. 74. •396 PRESENTMENT AND NOTICE OF DISHONOR. (Ch. 9 ■drawer has consigned property to the drawee which he draws against,^'' nor because there is a running account between him and the drawer,"^" nor in any case where he has reason to expect his draft would be honored.^*" The test to be applied is whether the ■drawer had a right to expect or require that the drawee would honor his bill.^*^ If the courts can construe such a legal right or just ■expectation on his part, failure to present the bill, and give him no- tice of its dishonor, discharges him. 238 DICKINS T. BEAL, 10 Pet. 572; Grosvenor v. Stone, 8 Pick. (Mass.) 79. 23 9 In the case of HAMMOND v. DUFRBNE, 3 Camp. 145, Lord EUen- tiorough said: "I conceive the whole period must be looked to from the draw- ing of the bill till it becomes due, and that notice is requisite if the drawer las effects in the bands of the drawee at any time during that interval." In THACKRAY v. BLACKETT, Id. 164, it was shown that after acceptance and indorsement, and before maturity, certain bills drawn on P. & S. were de- ■stroyed by mistake while in the hands of the acceptor. This fact was made linown to the defendant (the drawer), and he was requested to give other bills. He refused, and afterwards P. & S. failed. No notice was given the defend- ant of dishonor, though the bills were presented on maturity. Lord Ellen- ■borough held that "it is well settled that insolvency or bankruptcy of the ac- ■ceptor does not dispense with due notice of the dishonor of the bill being given to the drawer. Then does it make any difference that the bills were destroyed "before they came due? I think not; for they might still have been paid with ■or without an indemnity, and the defendant, not hearing that they were dis- honored, might have been prevented from pressing his remedy against the acceptors. • * * If there was an open account between the parties, and ■ "the acceptors were indebted in any sum to the drawer before the bills became ■due, I cannot say that he must necessarily have been aware beforehand that ■either of them would be dishonored." See, also, DONNELLY v. HOWIE, Hayes & J. 436. 240 THACKRAY v. BLACKETT, 3 Camp. 164; LEGGE v. THORPE, 12 East, 171. Thus, in the case of BLACKHAN v. DOREN, 2 Camp. 503, it was lield that if the drawer of a bill of exchange, when presented for acceptance, las effects in the hands of the drawees, though he is indebted to them for a much larger amount, and they, without his knowledge, have appropriated these effects to the satisfaction of the debt, he is entitled to notice of dishonor for nonacceptance, as he might expect under these circumstances that the bill would be accepted and paid. See, also, Carew v. Duckworth, L. B. 4 Exch. 313; Hopkirk v. Page, 2 Brock. 34, Fed. Cas. No. 6,697; CATHELL v. GOOD- WIN, 1 Har. & G. (Md.) 468; ROBINSON v. AMES, 20 Johns. (N. Y.) 140. 241 See Neg. Inst. L. §§ 139, 185, subd. 4. §§ 147-147b) EXCUSES for failure to present or give notice. 397 Thus when the drawer or indorser is fully secured, and has prom- ised to see to the payment of the paper,^*^ there is no reason for the enforcement of the rule requiring presentment and notice in his be- half. As we have already said, one of the principal objects of no- tice is to enable the indorser to obtain indemnity from the princi- pal, and this has already in such case been attained. But the mere precaution by an indorser of taking security from his principal does- not operate as a dispensation of a regular demand and notice. It has been held that an assignment to the drawer or indorser of all the property of the acceptor or maker as security against liability is sufficient to dispense with presentment and notice."*' But upon principle, and by weight of authority, even this is not enough unless there be an understanding, express or implied, between the parties, that the drawer or indorser is to be exclusively liable to provide for the payment; and in all cases the proper test is whether the drawer or indorser is bound to take up the paper.''** Presentment and notice are also dispensed with when the drawer and drawee are one and the same person,"*' and consequently when a bill is drawn by a partner on the firm in the firm business,"** and when the drawee is a fictitious person."*' Reasonable Diligence. Presentment may be dispensed with when, after the exercise of reasonable diligence, it cannot be made; and notice of dishonor is dispensed with when, under the same circumstances, it cannot be '<2 Corney v. Da Costa, 1 Esp. 302; Bond v. Farnham, 5 Mass. 170; Daniel, Neg. Inst. §§ 1128-1143; Tied. Com. Paper, f 362. 2*3 Duvall V. Bank, 9 Gill & J. (Md.) 31; Spencer v. Harvey, 17 Wend. (N. Y.) 489; Daniel, Neg. Inst. §§ 1130-1132. 2" MOSES V. ELA, 43 N., H. 557; Creamer v. Perry, 17 Picli. (Mass.) 332; Hasliell V. Boardman, 8 Allen (Mass.) 38; WILSON v. SBNIER, 14 Wis. 380; Ray V. Smith, 17 Wall.- 416; HULL v. MYERS, 90 Ga. 674, 16 S. E. 653. 2*5 As to notice. Bailey v. Bank, 11 Fla. 266; Raymond v. Mann, 45 Tex. 301. As to presentment. Bailey v. Bank, supra; Maux Ferry Gravel Road Co. v. Branegan, 40 Ind. 361. But as to presentment this is doubtful. 2 Ames, Cas. Bills & N. 462, note 1; Daniel, Neg. Inst. § 1088a. See Neg. Inst. L. § 185, subd. 1. 246PORTHOUSB V. PARKER, 1 Camp. 82; GOWAN v. JACKSON, 20^ Johns. (N. Y.) 176; Rhett v. Poe, 2 How. 457; Daniel, Neg. Inst. § 1086. 2*1 Smith V. Bellamy, 2 Starkle, 223; Chalm. Bills Exch. (4th Ed.) 150. See Neg. Inst. L. |§ 142, 185. Cf. section 186, subd. 1; section 245, subd. 1. 398 PRESENTMENT AND NOTICE OF DISHOSOK. (Ch. 9 given, or does not reach the parties sought to be charged.^*' It is impossible to define accurately what constitutes reasonable dili- gence, or to do more than enumerate some of the instances in which presentment and notice may be dispensed with under this general rule. Wsiv,^" disease,^"" the suspension of commercial intercourse by superior force, such as the public and positive prohibition of com- merce, occupation of a country by public enemies,^" and the like, exonerate the holder from presentment and notice. The interest of the public forbids such acts, and therefore the individual cannot be held responsible if he fail to perform them. Thus, the public policy forbids communication with districts infected by such plagues as the cholera or yellow fever, because public safety requires their quarantine. Hence, even if the matter be not regulated by express statute, as it is in some states, the doctrines of the common law for- bid all business intercourse with the inhabitants of such districts. But the other rule of the common law, that inability to perform the terms or conditions of a contract by reason of inevitable accident or casualty constitutes no excuse for non-performance, does not apply to the presentment of negotiable instruments and notice of their dis- honor, because questions of presentment and notice depend upon due diligence. The holder, if he has used due diligence in present- ing the bill or note, and in notifying parties of its dishonor, has done all the law requires of him.^" Diligence on his part is measured 21S See Neg. Inst. L. §§ 142, 183, 245. 2*» Scholefleld v. Eichelberger, 7 Pet. 586; TJ. S. v. Grossmayer, 9 Wall. 75; Berry v. Southern Bank, 2 Duv. (Ky.) 379; JAMES v. WADE, 21 La. Ann. 548 The court is here speaking of checks payable to bearer, or to A, or bearer, .■md ppt cf f'-'" <■•■■ 1 •ly-' 'o to a rP''S'^n, or order. •1 See LITTLE v. BANK, 2 Hill (N. Y.) 425. 412 CHECKS. (Ch. 10 I'ri:d3:;tlient and notice of dishonor— effect op DELAY. 152. The dra-wer of a check is not discharged from his obligation by unreasonable delay in prtjentment of the check for payment, or in giving him notice of dishonor, in case of presentment and dishonor, unless he has been actually prejudiced thereby; but if he has suffered a loss thereby, as by failure of the bank, he is discharged to the extent of his loss. • 153. In determining A^hat is a reasonable time, regard must be had to the nature of the instrument, the usage bf trade and of bankers, and the facts of the particular case. A check is to be deemed to have been presented -within a reasonable time when presented according to the following rules: (a) If the person who receives it and the banker are in the same place, it must, in the absence of special circumstances, be presented during busi- ness hours of the next secular day after it is received. (b) If the person w^ho receives it and the banker are in different places, it must, in the absence of special circumstances, be forwarded for present- ment on the next secular day after it is re- ceived, and the agent to whom it is sent must present it during business hours of the next secular day alter it is received by him. 154. STATUS OP "STALE" CHECK— If the delay in presenting a check is so unreasonable as to make the check "stale" (a year and a half, for instance, or perhaps five months, or even less), the bank will be put upon in- quiry as to equities of the drawer, and will pay at its peril; and the check will perhaps be treated like an over- due bUl, and cease to be negotiable. 5§ 152-lo4) PRESENTMENT AND NOTICE OF DISHONOR. 413 As has been seen, delay in presenting a bill of exchange either for acceptance, or for payment after acceptance, will operate to dis- charge the drawer from his obligation. Checks, however, in this respect, stand on a very different footing. A check is not present- able at all for acceptance, but is presentable for payment only, though the bank, as we shall see, may accept it if it chooses and the holder so desires. And there is no fixed rule as to the time within which a check must be presented for payment. It is pay- able on demand, and demand may be made 'at any time within the period of the statute of limitations. Certain consequences may re- sult, however, from delay in presenting a check, so that, while de- lay may not under ordinary circumstances affect the rights of the holder, it is always unsafe.* In no case will delay in presentment discharge the drawer from his obligation either on the check or on the original consideration, unless it can be shown that he was prejudiced thereby.'^ When a man gives a check, he should see that he does not withdraw the * Indorsers stand on a different footing from the drawer; and, as In the case of bills of exchange, unless presentment be made,' and notice given, within a reasonable time, they are discharged. MERCHANTS' BANK v. SPICER, 6 Wend. (N. Y.) 445; MURRAY v. JUDAH, 6 Cow. (N. Y.) 490; Daniel, Neg. Inst. § 1587. See Kirlipatrick v. Puryear, 93 Tenn. 409, 24 S. W. 1130. 32 SERLE v. NORTON, 2 Moody & R. 401, and ROBINSON v. HAWKS- FORD, 9 Q. B. 52, among many other cases, sustain this proposition. In Serle v. Norton, a check dated March 19th was not presented until April 6th, when payment was refused. The holder sued the drawer, and the latter pleaded delay on presentment. No excuse for the delay was shown, hut it did not appear that the bank had failed, or that the defendant was otherwise prejudiced. The plaintiff had a verdict. In ROBINSON v. HAWKSFORD, a check drawn on June 13th was not presented for payment until June 2Sth, when payment was refused by direction of the drawer given on the 21st. The payee sued the drawer, who pleaded delay in presentment. It was held that the delay was Immaterial, since no inconvenience resulted, and that the defendant was not discharged from his liability on the check, so as to leave the plaintiff to sue on the consideration for it. There are many cases to the same effect. See BULL v. BANK, 123 U. S. 105, 8 Sup. Ct. 62; LITTLE V. BANK, 2 Hill (N. Y.) 425, 7 Hill (N. Y.) 359; Hoyt v. Seeley, 18 Conn. 353; Pack v. Thomas, 13 Smedes & M. 11; Purcell v. Allemong, 22 Grat. (Va.) 739; Howes v. Austin, 35 lU. 396; Heartt v. Rhodes, 66 111. 351; Stevens V. Park, 73 111. 387; Henshaw v. Root, 60 Ind. 220; STEWART v. SMITH, 17 Ohio St. 82; Kinyon v. Stanton, 44 Wis. 479. 414 CHECKS. (CL 10 money that is there to meet it. Allowing the money to remain there cannot prejudice him. , If the delay is unreasonable, and the drawer is prejudiced thereby, he will be discharged from his obligation, both on the check and on the original consideration, to the extent of his loss, but only to that extent.*' Thus, if the holder of a check fails to present it within a reasonable time, and the bank becomes insolvent, so that the drawer loses the whole amount of the check which he had on deposit to meet it, the loss will fall on the holder, and the drawer will be entirely discharged. It would be unreasonable to permit the holder to allow the money to remain in the bank indefinitely at the risk of the drawer, who has no means of protecting himself. If the bank should pay the drawer 50 cents on the dollar, so that he would only lose half the amount of the check, he would only be discharged as to the other half. If he had no money at all in the bank, though the bank might have honored his check, he would not be discharged at all. In all cases there must be both unreasonable delay and prejudice. "When a loss has occurred by the check not being pre- sented, it is necessary to inquire if there was any unreasonable de- lay. ♦ • • Under ordinary circumstances, the only rule is, that, if things have continued the same, and no damage has arisen from delay of presentment, the drawer continues liable." ** It is in this sense only that the drawer is entitled to have his check presented within a reasonable time. In no case will the drawer be discharged unless the delay was un- reasonable under the circumstances of the particular case. If the bank on which a check is drawn should fail after issue of the check, and before presentment, there being no unreasonable delay in pre- senting it, the loss would fall on the drawer, and he would continue liable on the check, or on the original consideration. Though the question as to what is a reasonable time for presentation of a check must depend upon the circumstances, it may be laid down as a gen- eral rule, that under ordinary circumstances, and where the payee or holder is in the same place where the bank is located, the check must be presented during banking hours of the next secular day S3 See the cases above cited. And see Alexander v. Burchfleld, 7 Man. & G. 1061; Neg. Inst. L. § 322. 84 Per Lord Denman, C. J., in ROBINSON v. HAWKSFOBD, supra. §§ 152-154) PEESENTMENT AND NOTICE OF DISHONOR. 415 after the day on which it is received by him; any longer delay will be unreasonable, and at his peril. ^^ If the bank is located at a dis- tant place, the check must be mailed to that place for collection not later than during business hours of the next secular day after its re- ceipt; and the person to whom it is sent must present it not later than during business hours of the next secular day after its receipt by him.'' These rules apply under ordinary circumstances only. There may be circumstances under which a greater delay would not be regarded as unreasonable.^' In like manner, and for the same reason, contrary to the rule gov- erning bills of exchange, the drawer of a check is not discharged by failure of the holder to give him notice of the dishonor of the check by the bank, unless he has been prejudiced thereby." Notice should be given, however, within a reasonable time (ordinarily, not later than the next secular day after the bank refuses payment), so as to enable the drawer to take steps to protect himself. If such no- tice is not given, and the drawer is prejudiced, he will be discharged 85 Alexander v. Burchfleld, 7 Man. & G. 1061, 11 Law J. C. P. 253; SMITH T. MILLER, 43 N. Y. 171; BICKFORD v. BANK, 42 111. 238; Farwell v. Cur- tis, 7 Biss. 165, Fed. Cas. No. 4,690; Hamilton v. Lumber Co., 95 Mieli. 436, 54 N. W. 903; GRANGE v. REIGH, 93 Wis. 552, 67 N. W. 1130. If the day following tlie day the check is delivered is Sunday or a legal holiday, presen- tation on the next day is in time. O'Brien v. Smith, 1 Black, 99. 36 Hare v. Henty, 30 Law J. C. P. 302; Prideaux v. Griddle, L. R. 4 Q. B. 455; Heywood v. Pickering, L. R. 9 Q. B. 428; SMITH v. JANES, 20 Wend. (N. Y.) 192; Northwestern Coal Co. v. Bowman, 69 Iowa, 150, 28 N. W. 496. This rule does not apply where the payee deposits the check for collection in a bank in the same place where he resides and the drawee bank is located. In such a case the check must be presented on the next secular day after it was received by the payee. SMITH v. MILLER, 43 N. Y. 171; Farwell v. Curtis, 7 Biss. 165, Fed. Gas. No. 4,690. If time is lost by depositing in a bank which forwards In a roundabout way, this is unreasonable delay. Moule v. Brown, 4 Bing. N. C. 266; Harvey v. Bank. 119 Pa. St. 212, 13 Atl. 202; First Nat. Bank v. Bank, 80 Md. 475, 31 Atl. 302; GREGG v. BBANE, 69 Vt. 22, 37 Atl. 248; GIFFORD v. HARDELL, 88 Wis. 538, 60 N. W. 1064; First Nat. Bank v. Miller, 37 Neb. 500, 55 N. W. 1064; 43 Neb. 791, 62 N. W. 195. Of. HOLMES v. ROE, 62 Mich. 199, 28 N. W. 864. 37 See Freiberg v. Cody, 55 Mich. 108, 20 N. W. 813; Cox v. Boone, 8 W. Va. 500; Firth v. Brooks, 4 Law T. (N. S.) 467. 38 BTJLL V. BANK, 123 U. S. 105, 8 Sup. Ct. 62; Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 607; Heartt v. Rhodes, 66 111. 351; Lester v. Given, 8 Bush (Ky.) 360; STEWART v. SMITH, 17 Ohio St 85. 416 CHECKS. (Ch. 10 pro tanto. The notice of dishonor need not be in any particular form. It may be oral as well as written. All that is required is that the fact of dishonor shall be made known to the drawer.^" It is not necessary, in the absence of a statute, that a check shall be protested on refusal of the drawee to pay it, in order to hold the drawer thereon; but it is safer to adopt this course, for the notary's certificate will be prima facie proof of presentment and dishonor.** Protest, however, is not necessary. Parol evidence of presentment and refusal is sufQcient.*^ The circumstances which will excuse the holder of a check for failure to present it in accordance with the rules above stated are, with few exceptions, the same as those which will excuse the failure to present a bill of exchange. The valid excuses, which "are mostly based upon the old adage of the civil law, 'Impossibilium nulla obligatio est,'" are thus stated by Mr. Van Schaack:*^ (1) Where the drawer had not sufficient funds in the bank when it was reason- able to suppose the check would be presented; (2) where he with- drew his funds before presentment; (3) removal of the drawee bank; (4) inevitable accident or overwhelming calamity; (5) the presence of political circumstances amounting to a virtual interrup- tion and obstruction of the ordinary negotiations of trade; (6) the breaking out of war between the country of the maker and that of the holder; (7) occupation of the country where the parties lived, or where the check was payable, by a public enemy, and suspension of commercial intercourse; (8) sudden illness or death of the holder or his agent; (9) general prevalence of a malignant disease, such as yellow fever or cholera, to such an extent as to stop all trade in the place; (10) impossibility of reaching the bank, by reason of snow, freshets, or overwhelming accidents; (11) when it was known 3 9 Williams v. Bank of TJ. S., 2 Pet. 96; MILLS v. BANK, 11 Wheat. 431; Bank of Alexandria v. Swann, 9 Pet. 33; Bowling v. Harrison, 6 How. 248. Immaterial mistakes will not render the notice ineffectual. MILLS v. BAXK, supra; DENNISTOUN v. STEWART, 17 How. 606. 40 TOWNSLEY v. SUMRALL, 2 Pet. 170. 41 Buckner v. Finley, 2 Pet. 589; BURKE v. McKAY, 2 How. 66; Mechan- ics' & Traders' Ins. Co. v. CoonSf 36 La. Ann. 271; Bowling v. Harrison, 6 How. 248; Williams v. Bank of U. S.. 2 Pet. 96; Moses v. Franklin Bank, 34 Md. 574; Norris v. Despard, 38 Md. 491; HARKER v. ANDERSON, 21 Wend. (N. Y.) 372; Young v. Bryan, 6 Wheat. 146; Union Bank v. Hyde, Id. 572. 42 Van Schaack, Bank Checks, 53, 54. And see BLAIR v. WILSON, 28 §§ 152-154) PRESENTMENT AND NOTICE OF DISHONOR. 417 that the check could not be paid by the bank, as because of its bankruptcy and suspension, or a public and notorious injunction issued against it.*' Notice of the existence of these circumstances should be given the drawer, if unknown to him, as soon as possible and practicable, or the excuse will not avail.** Status of a "Stale" Check. While, as we have just seen, the drawer of a check is not dis- charged by unreasonable delay of the holder in presenting it for payment, unless prejudice can be shown to have resulted, it is al- ways unsafe to delay presentation, not only because loss may thus discharge the drawer or indorser, but for the further reason that a "stale" check is rightly looked upon with suspicion, for checks are not supposed to remain long in circulation. The fact, therefore, that a check is stale when presented for payment has been held sufficient to put the bank upon inquiry, so that, if it pays such a check without inquiry, it will be held to have done so at its peril in case the check is for any reason invalid as against the maker.*^ It has also been held that the staleness of a check is sufflcient to put a purchaser of it upon inquiry as to equities that may exist between the drawer and the payee.*" No certain rule has been laid down for determining when a check is to be regarded as stale, nor can any rule be gathered from the decided cases. It seems that a check is not stale if it is only a few days, or even a month, old;*' but a check has been held stale when it was a year and a half old,** and even where it was five months old.*' Grat. (Va.) 165, 172; Bell v. Alexander, 21 Grat. 1, 6; Fletcher v. Pierson, 69 Ind. 281; Lovett v. Corn well, 6 Wend. (N. Y.) 369; Ehett v. Poe, 2 How. 457. *3 Van Schaack, Bank Checks, 53-55; Lovett v. Cornwell, 6 Wend. (N. Y.) 369; ante, p. 394, where excuses for nonpresentment of bills of exchange are shown. <4 See Purcell v. AUemong, 22 Grat. (Va.) 739. 46 Daniel, Neg. Inst. (3d Ed.) § 1632; Lancaster Bank v. Woodward, 18 Pa. St. 357. *8 FIRST NAT. BANK v. NEBDHAM, 29 Iowa, 249; Skillman t. Titus, 32 N. .T. Law, 96. " Lester v. Given, 8 Bush (Ky.) 357; AMES v. MERIAM, 98 Mass. 294; First Nat. Bank v. Harris, 108 Mass. 514; London & 0. Bank v. Groome, 8 Q. B. Div. 288; Estes v. Shoe Co., 59 Minn. 504, 61 N. W. 674. *8 Lancaster Bank v. Woodward, 18 Pa. St. 357. "FIRST NAT. BANK v. NEEDHAM, 29 Iowa, 249. Contra, BULL v. BANK, 123 U. S. 105. 8 Sup. Ct. 62; Serrell v. Railway, 9 0. B. 811 (2 months), NEG.BILLS.— 27 418 CHECKS. (Ch. 10 RIGHTS OP HOLDER AGAINST BANK. 155. By the weight of authority, though there are de- cisions to the contrary, -which are controlling in the par- ticular jurisdictions, the holder of a check has no right of action against the bank on which it is drawn for refusal to pay it, unless the bank has assumed an obligation to him by certifying or accepting it ; his only remedy in such a case being against the drawer, and against the indors- ers, if there are any. It would seem that there is no privity of contract between the payee or holder of a check and the bank upon which it is drawn, and, therefore, that the payee or holder cannot maintain an action at law against the bank on its refusal to honor the check, unless the bank has expressly, or by its conduct, assumed an obligation to him; but there is upon this question a direct conflict in the au- thorities. Some of the courts have held that the check is an equi- table assignment of the amount in the hands of the banker to the payee or holder, and that there is an implied contract between the bank and the holder, so as to render the bank liable to the latter on its refusal to pay the check."" By the weight of authority, however, and, it would seem, on principle, there is no assignment, nor privity of contract, and the bank is not liable to the holder of an uncertified and unaccepted check, either at law or in equity. His remedy is against the drawer, and to the drawer only is the bank liable if its refusal to pay was a breach of its contract In an English case it was held that the holder of an uncertified check could not maintain an action at law against the bank under a statute allowing the assignee of a chose in action to sue thereon in BO Fogarties v. State Bank, 12 Rich. Law (S. C.) 518; Roberts v. Corbin, 2& Iowa, 315; Munn v. Burcb, 25 111. 35; Fourth Nat. Bank of Chicago v. City Nat. Bank of Grand Rapids, 68 111. 398; Union Nat. Bank v. Oceana Co. Bank, 80 lU. 212; National Bank of America v. Indiana Banking Co., 114 IlL 483, 2 N. E. 401; Lester v. Given, 8 Bush (Ky.) 357; Weinstock v. Bell- wood, 12 Bush (Ky.) 139; McGrade v. German Sav. Inst., 4 Mo. App. 330 r Zeller v. German Sav. Inst., Id. 401; Senter v. Continental Bank, 7 Mo. App. 532. § 156) CERTIFICATION AND ACCEPTANCE OP CHECKS, 419' his own name at law. "The bank," it was said, "has made a con- tract with the drawer that they will honor hia checks to the amount of his account. They break that contract. How can that give a right of action to a third person? The check, is but an order to pay, and not an absolute assignment of anything." °^ In Hopkin- son V. Forster " it was held that the bank is not liable to the holder in equity. "A check is clearly not an assignment of money in the hands of a banker; it is a bill of exchange payable at a banker's^ The banker is bound by his contract with his customer to honor- the check, when he has sufQcient assets in his hands. If he does: not fulfill his contract, he is liable to an action by the drawer, in which heavy damages may be recovered if the drawer's credit has; been injured. I do not understand the expressions attributed to Mr. Justice Byles in the case of Keene v. Beard, but I am quite sure that learned judge never meant to lay down that a banker who dishonors a check is liable to a suit in equity by the holder." °* CEETinCATION AND ACCEPTANCE Or CHECKS. 156. By certifying: a check to be good, the bank assumes an unconditional obligation to the holder presenting it,, and to every subsequent holder, to pay it on demand; and " Schroeder v. Central Bank, 34 Law T. (N. S.) 735, per Brett, J. And see Gibson v. Cooke, 20 Pick. (Mass.) 15; Bullard v. Randall, 1 Gray (Mass.) 605; Dana v. Boston Third Nat. Bank, 13 Allen (Mass.) 448; National Bank T. Millard, 10 Wall. 152; First Nat. Bank v. Whitman, 94 U. S. 343; Chap- man V. White, 6 N. ¥. 412; Aetna Nat. Bank v. Fourth Nat. Bank. 46 N. Y. 82; Tyler v. Gould, 48 N. Y. 682; ATTORNEY GENERAL v. CONTINETAL. LIFE INS. CO., 71 N. Y. 325; SECOND NAT. BANK v. WILLIAMS, 13 Mich. 282; Creveling v. Bloomsbury Nat. Bank, 46 N. J. Law, 255; Loyd v. Mc- Caffrey, 46 Pa. St. 410; First Nat. Bank v. Gish, 72 Pa. St 13; Moses v.. Pranldin Bank, 34 Md. 574; National Commercial Bank v. Miller, 77 Ala. 168; St John v. Homans, 8 Mo. 383; Case v. Henderson, 23 La. Ann. 49; Colorado' Nat Bank v. Boettcher, 5 Colo. 185; Northern Trust Co. v. Rogers, 60 Minn. 208, 62 N. W. 273. Such is the provision of Neg. Inst. L. § 325. But, if the- parties so agree, the transaction will have the effect of an equitable assign- ment Fourth St. Nat Bank v. Yardley, 165 TJ. S. 634, 17 Sup. Ct 439. 15 2 L. E. 19 Bq. 74. " Hopkinson v. Forster, L. R. 19 Eq. 74. 420 CHECKS. (Ch. 10 this obligation may he enforced by the holder against the "bank. And a delay in presentment -will not discharge the -obligation. 157. The certification of a check at the instance of the "holder discharges the drawer and indorsers from liability, "but the dra-wrer is not discharged where he himself has it certified, and puts it in circulation. The drawer will also te discharged if the holder takes the parol acceptance of the bank instead of payment. 158. Where the draw^er of a check has no funds in a "bank and the bank verbally promises the holder to honor "the check, this, it has been held (though there are de- cisions apparently to the contrary), is a mere parol promise to answ^er for the debt of another, within the statute of frauds, and cannot be enforced. But such a promise -where the bank has fands of the draw^er, whether ex- 3)ress or implied, is clearly binding as a promise to pay -Its ow^n debt. 159. Where a bank pays a check to a holder under an "unauthorized indorsement, and charges the amount to the a,ccount of the draw^er, it is liable for the^ amount of the «heck to the true holder on demand. The action, it would seem, should be brought, not on the check, but on the 3)romise implied in law from its receipt of the money :from the drawer for the true holder's use. 'Certified Checks— Liability of Bank. A certified check is a check which the. bank on which it is drawn "bas certified to be good, for the purpose of assuring the holders of It that it will be paid when presented. No particular form of Tvords is necessary. All that is required is that it shall clearly appear that a certification is intended. A bank, by certifying a -^heck as good, estops itself, as against a bona fide holder, to deny that it was valid as a draft upon the funds of the drawer, and would not, for instance, be allowed to say that it was made payable to no §§ 156-159) CERTIFICATION AND ACCEPTANCE OF CHECKS. 42Il one, and therefore void, for it would be held payable to bearer ;^*^ nor would it be allowed to dispute the genuineness of the drawer's signature, as against a bona fide holder," or the suflSciency of funds in its hands to pay it."^ In reason it would seem that the certiflcation of a check is, as regards a bona fide holder, an abso- lute promise that the check will be paid on demand. It has been held in New York, however, that the certiflcation only estops the bank from denying that the signature is genuine, and that there are sufficient funds, leaving it free to dispute the genuineness of the- body of the check as to the amount or as to the payee.'*' If the- offlcer or employ^ of a bank, whose regular duty it is to certify the checks drawn upon it, certifles a check in excess of his authority,, the certiflcation will nevertheless bind the bank as against a bona fide holder of the check. This, however, is a question of the law of agency."" The effect of the certiflcation of a check by the bank upon which it is drawn is not merely a declaration of the fact that the maker has sufficient funds to his credit to pay it; but it is more. It cre- ates a new and binding obligation on the part of the bank. It is an appropriation of the funds of the drawer, to the amount of the check, to its payment, and an Unconditional promise by the bank to make the payment on demand. This promise the bank impliedly makes to every subsequent holder of the check, and it may be enforced by him in an action against the bank.*" In this. 65 WILLETS T. BANK, 2 Duer (N. Y.) 121. 66 Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125j. Commercial & Farmers' Nat. Bank v. First Nat. Bank, 30 Md. 11. " ESPY V. BANK, 18 Wall. 621. 68 MARINE NAT. BANK v. NATIONAL CITY BANK, 59 N. Y. 67. 69 Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 14 N. Y. . «23, 16 N. Y. 125; Meads v. Merchants' Bank, 25 N. Y. 143; Cooke v. State- Nat. Bank, 52 N. Y. 106; MERCHANTS' BANK v. STATE BANK, 10 Wall.. 604. It is otherwise if the officer or employ^ has no authority to certify- checks. Pope v. Bank of Albion, 57 N. Y. 126; Mussey v. Eagle Bank, 9 Mete. (Mass.) 306. 00 This was held in WILLETS v. BANK, 2 Duer (N. Y.) 121, and many other- cases may be cited to the same effect. See National Commercial Bank v.. Miller, 77 Ala. 168; Florence Min. Co. v. Brown, 124 U. S. 385, 8 Sup. Ct 531;. Uclede Bank v. Schuler, 120 U. S. 511, 7 Sup. Ct. 644; MERCHANTS' NAT.. BANK v. STATE NAT. BANK, 10 Wall. 604; Farmers' & M. Bank v. Butcher^ 422 CHECKS. (Ch. 10 respect, as we have seen, an uncertified check is on a different Ifooting. Delay in presenting a certified check does not discharge the bank from its obligation. "The obligation of the bank is simple and unconditional to pay upon demand; and in all such cases the de- mand may be made whenever it suits the convenience of the party •entitled to the stipulated payment. When the business of a bank is properly conducted, it is not possible that it can sustain any loss or prejudice from this interpretation of its contract, — ^the con- tract which it makes in certifying a check; and it is only where delay may be prejudicial that the want of due diligence may be legally imputed; and operate as a bar to a claim otherwise valid. "• • * There is in reality, in good sense, no distinction, in the na- ture of the liability created, between a certified check and a note of the bank payable on demand. Each is intended to circulate as money, each is an absolute promise to pay a specific sum upon de- mand, and laches in making the demand is no more imputable in the one case than in the other. The only difference between them is that the promise which in the note is expressed in the check is implied."^^ Discharge oj Drawer and Indorsers by Cert'ification or Acceptance of Chech The certification of a check at the instance of the holder operates ras a discharge of the drawer from his liability, *he holder's only remedy thereafter being against the bank; ana in like manner it will operate as a discharge of prior indorsers, who, as to the holder, occupy the same position as the drawer. It is otherwise, however, if the drawer himself has a check certified and puts it in circulation. In such a case he remains also liable, unless there is some agree- ment to the contrary. That certification at the instance of the hiolder discharges the drawer was held in FIRST NAT. BANK v. ajEACH.'" The theory of the law, it was there explained, is that, .& D. Bank, 14 N. Y. 623, 16 N. Y. 125; Girard Bank v. Bank of Penn Tp., 39 Pa. St. 92; Meads v. Merchants' Bank, 25 N. Y. 143; Andrews v. German Nat :Bank, 9 Heisk. (Tenn.) 211; Mussey v. Eagle Bank, 9 Mete. (Mass.) 306. See Neg. Inst. L. § 323. «i WILLETS v. BANK, 2 Duer (N. Y.) 121. And see the cases above cited. 82 52 N. Y. 350. To the same effect, see Metropolitan Nat. Bank of Chicago V, Jones, 137 m. 634, 27 N. E. 533; CONTCINENTAL NAT. BANK V. M. §§ 156-159) CERTIFICATION AND ACCEPTANCE OF CHECKS. 423 where a check is certified to be good by the bank upon which it is drawn, the amount thereof is then charged to the account of the drawer. Every well-regulated bank adopts this practice to protect itself, and the reason therefor is so strong that the law presumes it is adopted by the banks. It follows that after a check is certified the drawer of the check cannot draw out the funds in the bank necessary to meet the certified check. The money is no longer his. If he ap- prehended danger from the suspected failure of the bank, he could not draw out that money, because it has already been appropriated by means of the check thus certified. As to him, it is precisely as if the bank had paid the money on the check, instead of cer- tifying it. This, it is true, applies also to the acceptance of a time bill of exchange before it is due. When the drawee accepts, it is an appropriation of the funds pro tanto for the service and use of the payee or holder of the bill, so that the money ceases hence- forth to be the money of the drawer, and becomes that of the payee or holder in the hands of the acceptor. Yet the acceptance of a time bill of exchange before due does not discharge the drawer. Its only effect is to make the acceptor the primary party to pay it The parties to a certified check, however, due when certified, occupy a different position. There the money is due and payable when the check is certified, and the holder of the check, instead of taking it when he may, leaves it with the bank, and instead takes the bank's certificate that it is good, and its promise to pay it on demand. The law will not permit a check, when due, to be thus presented, and the money to be left with the bank for the accom- modation of the holder, thus changing the position and increasing the risk of the drawer, without discharging him. If the holder, therefore, chooses to have the check certified instead of paid, he dis- charges the drawer, and his only remedy is against the bank."* CORNHATJSBB & CO., 37 lU. App. 475; BOEN v. BANK, 123 Ind. 78, 24 N. B. 178; Essex Co. Nat. Bank v. Bank of Montreal, 7 Biss. 193, Fed. Gas. No. 4,532; First Nat. Bank of "Washington v. Whitman, 94 U. S. 343, 345; National Commercial Bank v. Miller, 77 Ala. 168. See Neg. Inst. L. § 324. 83 FIRST NAT. BANK OF JERSEY CITY v. LEACH, 52 N. Y. 350; Freund T. Importers' & T. Nat. Bank, 76 N. Y. 352; MINOT v. ETJSS, 156 Mass. 458, SI N. E. 489; Bounds v. Smith, 42 111. 245; BROWN v. LECKIE, 43 lU. 497; Andrews v. Bank, 9 Heisk. (Tenn.) 211; LAESEN v. BEEENE, 12 Colo. 480, 21 Pac. 498; Mutual Nat. Bank v. Eotge, 28 La. Ann. 933. Nor is an in- 424 CHECKS. (Ch. 10 The rule does not apply where the drawer himself causes the check to be certified, and then puts it in circulation. In such a case the reason for the rule does not apply, and he also remains liable." The same is true where the holder of a check takes the parol ac- ceptance of the bank instead of payment. 11 the payee or holder of a check presents the check, and the bank offers to pay it, he cannot, instead of taking the money, leaye it with the bank, without doing so at his own risk. If the bank faUs, the drawer is discharged, and it makes no difference that the check was presented on the same day it was received, and the bank suspended soon afterwards, and re- fused payment, when the check was again presented on the same day. He might, it is true, have waited until the next day to present the check, without being chargeable with laches, but having pre- sented it earlier, and 'having refused to receive payment when of- fered, he cannot hold the drawer.'* Verbal Acceptance or Promise by Bank to Pay Check. A bank may render itself liable to the holder of a check otherwise than by a certification of it It may under some circumstances ren- der itself liable by a verbal acceptance, and a promise, express or implied from acceptance, to pay it; and under some circumstances an acceptance and promise may be implied from its conduct. If the drawer of a check has no funds in the bank, and the bank verbally promises the holder to honor the check, it would seem clear that this is a mere parol promise to answer for the debt of the drawer, dorser discharged where he himself procures a check to be certified, and then transfers it. Mutual Nat. Bank v. Rotge, supra. 64 FIRST NAT. BANK OF JERSEY CITY v. LEACH, supra; MINOT v. RUSS, supra. "When a check payable to another person than the drawer Is presented by the drawer to the bank for certification; the bank knows that it has not been negotiated, and that it is not presented for payment, but that the drawer wishes the obligation of the bank to pay it to the holder when it is negotiated, in addition to his own obligation. But, when the payee or holder of a check presents it for certification, the bank knows that this is done for the convenience or security of the holder. The holder could demand payment if he chose, and it is only because, instead of payment, the holder desires cer- tification, that the bank certifies the check instead of paying it. In one case the bank certifies the check for the use or convenience of the drawer, and in the other for the use or convenience of the holder." MINOT v. RUSS, supra. 65 Simpson v. Pacific Mut. Life Ins. Co., 44 Cal. 139. §§ 156-159) CERTIFICATION AND ACCEPTANCE OF CHECKS. 425 and, under the section of the statute of frauds requiring a promise to answer for the debt of another to be in writing, not enforceable against the bank. In MOESE v. MASSACHUSETTS NAT. BANK,«« a bank in which the drawer of checks upon it had no funds had ver- bally promised the holder to pay the checks, if deposited in some other bank, and presented through the clearing house. It was held that this was a mere parol promise to pay another's debt, within the statute of frauds, and that the holder, therefore, acquired no right against the bank. And it was held that the reasons for holding good a parol accommodation acceptance of a bill of exchange do not apply to the case of a bank check. There are cases, however, ap- parently sustaining the proposition that parol acceptances of checks by the bank may be enforced without regard to whether the bank has funds of the drawer. If the bank has funds of the drawer, and verbally accepts the check, and promises the holder, expressly or impliedly, by such ac- ceptance, to pay it, the leaving of the funds with the bank instead of withdrawing them is a sufficient consideration to support the promise; and the promise, being to pay the promisor's (the bank's) own debt (that is, the debt it owes to the drawer), is not within the statute of frauds. The holder can therefore maintain an action against the bank on such a promise."^ A bank is entitled to a reasonable time in which to ascertain whether the drawer's signature is genuine, and whether he has suffi- cient funds to meet the check, and its retention of the check for such a time cannot be construed as an acceptance of the check and prom- ise to pay it."' But if it retains a check for an unreasonable time, it runs the risk of being held to have impliedly accepted the check so as to become liable to the holder to pay it.*° «8 1 Holmes, 209, Fed. Cas. No. 9,857. 67 See the cases hereafter cited. ESPY v. BANK, 18 Wall. 621; MASON v. DOUSAY, 35 III. 424; BANK OF RUTLAND v. WOODRUFF, 34 Vt. 89. 68 Boyd V. Emmerson, 2 Adol. & E. 184; Overman v. Hoboken City Bank, 31 N. J. Law, 563. 69 First Nat. Bank v. McMichael, 106 Pa. St. 460. In New York it has been held that a bank is bound to know the state of its depositor's account im- mediately upon presentation of his check. Oddie v. National City Bank, 45 N. Y. 736. 426 CHECKS. (Ch. 10 Payment on Unauthorized Indorsement. Where a bank pays a check to a holder under an nnauthorized indorsement, and charges the check to the account of the drawer, it has been held, though there is a decision to the contrary,'" that it is liable for the amount of the check to the true holder on demand. The action, however, it is submitted, should properly be brought, not on the check, but for money had and received, — that is, on the promise implied in law from the receipt by the bank of the amount of the check from the drawer for the use of the true holder. In BANK OF THE EEPTIBLIO v. MILLAED," where the coiirt held that the true holder of a check paid to another under a forged in- dorsement cannot sue the bank for refusing payment to him, in the absence of proof that it was accepted by the bank or charged against the drawer, it was said: "It may be, if it could be shown that the bank had charged the check on its books against the drawer, and set- tled with him on that basis, that the plaintiff could recover on the count for money had and received, on the ground that the rule ex aequo et bono would be applicable, as the bank, having assented to the order, and communicated its assent to the drawer, would be con- sidered as holding the money thus appropriated for the plaintiff's use, and therefore under an implied promise to him to pay it on de- mand." In SEVENTH NAT. BANK v. COOK," the supreme court of Pennsylvania, purporting to apply the principle above stated, held that the payment of a check to the holder under an unauthorized in- dorsement, the check being charged to the account of the maker, amounts to an acceptance, and binds the bank to pay the true holder on presentment. It was said in this case that "it is, in fact, an ac- ceptance, and binds the bank as a certified check does. It is tanta- mount to an acceptance of a draft." It does not seem right to base this decision on the ground that the check is accepted or certified by the bank, though the court seems to have done so, losing sight, it seems, of the principle stated in BANK OP THE EEPUBLIC v. MIL- LARD, upon which it relied. There was in fact no certification of the check, nor any acceptance of it by the bank on presentment 70 First Nat. Bank v. Whitman, 94 U. S. 343. 71 10 Wall. 152. 72 73 Pa. St. 483. See, also, DOBGE v. BANK, 20 Ohio St. 234, 30 Ohio St. 1; Vanbibber v, Louisiana Bank, 14 La. Ann. 481. § 160) FAILURE OF BANK TO HONOR CHECK. 427 which could be construed as a promise in fact to the true holder to pay the check. The action should not be on the theory that the bank has certified the check, but should be on the theory that, hav- ing retained the money in settling with the drawer of the check, it holds the same for the use of the true holder of the check, the ac- tion being on the promise created by law for money had and re- ceived. FAILURE OF BANK TO HONOR CHECK. 160. A bank having funds of a depositor is bound to honor his checks to the amount of those funds, and, for a failure to do so, is liable for damages. The bank, ho-wr- ever, must have had a reasonable time since the deposit in which to make proper entries on its books so as to show the amount to the depositor's credit. When a bank receives funds on deposit it impliedly contracts with the depositor that it will pay checks drawn by him to the amount of the deposit, and a failure to honor his check when there are suffi- cient funds to his credit is not only a breach of contract, but a tort as well, entitling the depositor to recover any damage he may have sus- tained, and to recover nominal damages, at least, if no actual dam- age has been sustained.'' ' Of course, the check must be drawn properly, so as to raise a duty on the part of the bank to pay it." " It was so held In MAEZETTI v. WILLIAMS, 1 Barn. & Adol. 415. And see Rolin v. Steward, 14 0. B. 595; Whi taker v. Bank of England, 1 Oromp., M. & R. 744; Patterson v. Marine Nat. Bank, 130 Pa. St. 419, 18 Atl. 632; Gray v. Johnston, L. K. 3 H. L. 1; National Mahaiwe Bank v. Peck, 127 Mass. 298. The rule also applies to notes and acceptances of a depositor made payable at the bank. Whitaker v. Bank of England, 1 Cromp., M. & E. 744; KOBARTS v. TUCKER, 16 Q. B. 560. It is not necessary to allege and prove special damages, at least If the form of action be tort, but the plaintiff may recover general compensatory damages. SchafCner v. Ehrman, 139 111. 109, 28 N. E. 917; Bank of Commerce v. Goos, 39 Neb. 437, 58 N. W. ■Si; Patterson v. Bank, 130 Pa. St. 419, 18 Atl. 632; ATLANTA NAT. BANK V. DAVIS, 96 Ga. 334, 23 S. E. 190; Svendsen v. Bank, 64 Minn. 40, 65 N. W. 1086. '* A bank is not bound to honor a check drawn on one of its branches by a depositor in another branch. Woodland v. Fear, 7 El. & Bl. 519; Gray v. John. L. R. 3 H. L. 1. 428 CHECKS. (Ch. 10 To render a bank liable for failure to honor a check, the depositor must haye had a right to draw the money. A bank may refuse to honor a check If there are not suflScient funds to the credit of the depositor, after offsetting a balance of account due from him to the- bank.'"' And there must be a sufficient balance to pay the check in full, for the bank cannot be required to make a part payment. The duty and authority of a bank to pay a check drawn on it by a depositor are determined by countermand of payment,'* or by notice of the drawer's death." It is only reasonable that, after a deposit is made, the bank should be allowed a reasonable time in which to enter the credit on its books, so that the clerk whose duty it is to pay checks may know the amount to the drawer's credit. If a deposit were made with one- clerk, and a check immediately presented to another, before he could have time to know of the deposit, the bank would not be liable for failure to honor the check. But if a reasonable time has elapsed between the deposit and presentation of the check the bank will be liable, notwithstanding the fact that the credit was not entered, for it must keep proper books, and conduct its business in a proper man- ner.'* 7 5 Garnett v. McKewan, L. R. 8 Exch. 10; Schuler v. Israel Bank, 120 V. S. 506, 7 Sup. Ct. 648. This applies where the balance against the depositor is at another branch of the bank. Garnett v. McKewan, supra. 7 6 See COHEN v. HALE, 3 Q. B. Div. 371; McLean v. Clydesdale Banking- Co., 9 App. Cas. 95. T! Kogerson v. Ladbroke, 1 Bing. 93. Such is the provision of the English Bills of Exchange Act (section 75). It is said that the Negotiable Instru- ments Law in its original draft contained the following: "The death of the drawer does not operate as a revocation of the authority of the bank to pay a check if the check is presented for payment within ten days from the date thereof;" but that this was struck out of the final draft. The pro- posed provision was taken from Pub. St. Mass. Supp. 1888, c. 210. See Hufecut, Neg. Inst. 80. Mr. Daniel maintains that the idea that death operates as a revocation is a total misconception of the law. Daniel, Neg.. Inst. § 1618b. '8 This was in efCect held in MARZETTI v. WILLIAMS, supra. In that case a depositor on the 17th of the month, when he had £69 to his credit in a bank, drew a check of that date for £87. At 11 o'clock on the 19th a deposit of £40 was made. At 3 o'clock on the 19th the check was presented and payment refused. The judge held that a bank who received a sum of" money belonging to his customer became his debtor the moment he received. § 160) FAILUHE OF BANK TO HONOR CHECK. 429 it, and was bound to pay a check drawn by such customer after the lapse of a such a reasonable time as would afford an opportunity to the different persons in his establishment of knowing the fact of the receipt of such money, and directed the jury to find against the banker if they were of opinion that such a reasonable time had intervened between the receipt of the money at 11 o'clock and the presentment of the check at 3. The court said that it could not be expected if a sum of money was paid to a clerk in a large banking office, and immediately afterwards a check presented to another clerk in a different part of the office, that the latter should be immediately acquainted with the fact of the deposit, but a reasonable time should be allowed for that purpose, and he told the jury that they should consider whether the banlcer ought or ought not, between 11 and 3 o'clock, to have had in some book an entry of deposit which would have informed all the clerks of the state of the account. The Jury found against the bank, and the verdict was sustained. See, also, Whitaker v. Bank of Eng- land, supra. • APPENDIX. THE NEGOTIABLE INSTRUMENTS LAW. Following the example of Great Britain, which in 1882 enacted the Bills of Exchange Act,^ many of the states of the Union have enact- ed the so-called Negotiable Instruments Law. The English act was based upon the Digest of Judge Chalmers, and is for the most part a codification of the law relating to bills, notes, and checks. The history of the American act is as follows: In 1895 in many of the states were passed acts providing for the appointment of "Commis- sioners for the Promotion of Uniformity of Legislation in the United States"; and at a conference of commissioners from nineteen states, held in that year, was adopted a resolution requesting the commit- tee on commercial laws to procure a draft of a bill relating to com- mercial paper, based on the English statute, and on such other sources; of information as the committee might deem proper to consult. The committee appointed a sub-committee, which employed Mr. John J. Crawford, of New York City, to make a draft. Upon the comple- tion of the draft by Mr. Crawford, it was revised by the sub-com- mittee, and was then submitted to a conference of the commission- ers, which included representatives of fourteen states; and, with certain amendments, was adopted by the commissioners. The final draft, with slight changes in some states, has already become law in fifteen states and in the District of Columbia. The law is in the main declaratory in its effect, but makes a few changes, and nec- essarily changes the law in some jurisdictions on points concerning which a conflict of laws has existed.^ M5 & 46 Vict. c. 61. See introduction to Ctialm. Dig. Bills Exch. (3d Ed.). The act is found in the Digest, and also in Rand. Com. Paper, p. 2737, and in .Hufecut, Neg. Inst. p. 87. " See preface to Crawford's Annotated Negotiable Instruments Law; HufC- cut, Neg. Inst. pp. 117-127. Few cases involving the construction of the Ne- gotiable Instruments Law have as yet arisen. On this point consult Cbalm. Dig. Bills Bxch., Preface, supra; BANK OF ENGLAND v. VAGLIANO, [1891] App. Cas. 107, 144, .per Lord Herschell; LEWIS v. CLAY, 42 Sol. J. 151, per Lord Russell. Both cases are found In Prof. HufEcut's valuable- book, which should be consulted by the student of the American law. See, also, Brewster v. Shrader, 57 N. Y. Supp. 606, 26 Misc. Rep. 480. NEG.BILLS. (431) THE NEGOTIABLE INSTRUMENTS LAW. (AS ADOPTED IN NEW YORK.) [This act has been adopted, with the changes indicated in the notes, in Colorado, Laws 1897, c. 64; Connecticut, Laws 1897, c. 74; District of Colum- bia, Laws 1899 (U. S.) c. 47; Florida, Laws 1897, c. 4524; Maryland, Laws 1898, c. 119; Massachusetts, Laws 1898, c. 533; New York, Laws 1897, c. 612, as amended by Laws 1898, c. 336; North Carolina, Laws 1899, c. 733; North Dakota, Laws 1899, c. 113; Oregon, Laws 1899, p. 18; Bhode Island, Laws 1899, c. 674; Tennessee, Laws 1899, c. 94; Utah, Laws 1899, c. 83; Virginia, Laws 1898, c. 866; Washington, Laws 1899, c. 149; and Wisconsin, Laws 1809, c. 356. The text of the law as printed here is that of the New York act, such modifications and additions as have been made by other states being iiidicated in the notes following the sections. [The section numbers in parentheses, except under article 1, are those of Colorado, Connecticut, District of Columbia, Florida, Massachusetts, North Carolina, North Dakota, Oregon, Tennessee, Utah, Virginia, and Washington. The section numbers in parentheses under article 1 are those of Colorado, Massachusetts, North Carolina, North Dakota, Utah, Virginia, and Washington. The section numbers in the other states are indicated in the footnotes.] THE NEGOTIABLE INSTRUMENTS LAW. Article I. General Provisions. (§§ 1-7.) II. Form and Interpretation of Negotiable Instruments. (§§ 20-42.) III. Consideration. (§§ 50-55.) IV. Negotiation. (§§ 60-80.) V. Bights of Holder. (§§ 90-98 ) VI. Liabilities of Parties. (§§ 110-119.) VII. Presentment for Payment. (§§ 130-148.) VIII. Notice of Dishonor. (§§ 160-189.) IX. Discharge of Negotiable Instruments. (§§ 200-206.) X. Bills of Exchange— Form and Interpretation. (§§f 210-215.) XI. Acceptance. (§§ 220-230.) XII. Presentment for Acceptance. (§§ 240-248.) XIII. Protest. (§§ 260-268.) XIV. Acceptance for Honor. (§§ 280-289.) XV. Payment for Honor. (§§ 300-306.) XVI. Bills in a Set. (§§ 310-315.) XVII. Promissory Notes and Checks. (§§ 320-325.) XVIII. Notes Given for a Patent Right and for a Speculative Considera- tion. (§§ 330-332.) XIX. Laws Repealed, When to Take Effect (§§ 340, 341.) [These sec- tions vary in the different states which have enacted this stat- ute, and are therefore not printed here'.] NEG.BILLS. (432) GENERAL PROVISIONS. 433 ARTICLE I.» GENERAL PROVISIONS. Section 1. Short Title. 2. Definitions and Meaning of Terms. 3. Persons Primarily Liable on Instrument 4. Reasonable Time, What Constitutes. 5. Time, Hqw Computed; When Last Day Falls on Holiday. 6. Application of Chapter. 7. Rule of Law Merchant; When Governs. Section 1 (190). Short Title. This act shall be Icnown as the Negotiable Instruments Law. Sec. 2 (191). Definitions and Meaning of Terms. In this act, unless the context otherwise requires: "Acceptance" means an acceptance completed by delivery or noti- fication. "Action" includes counter-claim and set-off. "Bank" includes any person or association of persons carrying on the business of banking, whether incorporated or not. "Bearer" means the person in possession of a bill or note which is payable to bearer. "Bill" means bill of exchange, and "note" means negotiable promis- sory note. "Delivery" means transfer of possession, actual or constructive, from one person to another. "Holder" means the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. "Indorsement" means an indorsement completed by delivery. "Instrument" means negotiable instrument. "Issue" means the first delivery of the instrument, complete in form, to a person who takes it as a holder. "Person" includes a body of persons, whether incorporated or not. "Value" means valuable consideration. "Written" includes printed, and "writing" includes print. i§§ 190-196,. Colo., Mass., N. C, N. D., Utah, Va., and Wash.; §§ 13-19, Md.; §§ 190-192, Dr.; §§ 1-7, R. I.; S 1675, Wis.; no section numbers Conn., D. C, Fla., and Tenn. NEG.BILLS.— 28 434 THE NEGOTIABLE INSTRUMENTS LAW. 8ec. 3 (192). Person Primarily Liable on Instrument. The person "primarily" liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are "secondarily" liable. Sec. 4 (193). Reasmiable Tvme, What Constitutes. In determining what is a "reasonable time" or an "unreasonable time" regard is to be had to the nature of the instrument, the usage of trade or business (if any) with respect to such instruments, and the facts of the particular case. See. 5 (194). Timie, Sow Computed; When Last Day Falls on Holiday, Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day. Sec. 6 (f 95). Application of Chapter. The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage hereof. Sec. 7 (196). -Law Merchant; When Goiems. In any case not provided for in this act the rules of the law mer chant shall govern. FORM AND INTERPEETATION. 435 ARTICLE n.' FORM AND INTERPRETATION. Section 20. Form of Negotiable Instrument 21. Certainty as to Sum; What Constitutes. 22. When Promise is Unconditional. 23. Determinable Future Time; What Constitutes. 24. Additional Provisions not Affecting Negotiability. 25. Omissions; Seal; Particular Money. 26. When Payable on Demand. 27. When Payable to Order. 28. When Payable to Bearer. 29. Terms, When Sufficient. 30. Date, Presumption as to. 81. Ante-Dated and Post-Dated. 32. When Date May be Inserted. S3. Blanks, When May be Pilled. 84. Incomplete Instrument not Delivered. S5. Delivery; When Effectual; When Presumed. 36. Construction where Instrument is Ambiguous. 87. Liability of Persons Signing in Trade or Assumed Name. 38. Signature by Agent; Authority; How Shown. 39. Liability of Person Signing as Agent, etc. 40. Signature by Procuration; Effect of. 41. Effect of Indorsement by Infant or Corporation. 42. Forged Signature; Effect of. Sec. 20 (1). Form of NegoUdble Instrument. An instrument to be negotiable must conform to the following re- quirements: 1. It must be in writing (a) and signed by the maker or drawer; 2. Must contain an unconditional promise or order (b) to pay a sum certain (c) in money; 3. Must be payable on demand (d), or at a fixed or determinable future time (e) ; 4. Must be payable to order (f) or to bearer (g) ; and 5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty, (h) (a) See § 2 (191) "written." (c) See § 21 (2). (b) See § 22 (3). (d) See § 26 (7), (e) See § 23 (4). 2 §§ 1-23, Colo., Conn., D. C, Pla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 20-42, Md.; §§ 9-31, R. I.; §§ 1675-1 to 1675-23, Wis. 436 THE NEGOTIABLE INSTRUMENTS LAW. BE. Section 80. Right of Holder to Sue; Payment 91. What Constitutes a Holder in Due Course. 92. When Person not Deemed Holder in Due Course, 93. Notice before Full Amount Paid. 94. When Title Defective. 95. What Constitutes Notice of Defect, 96. Rights of Holder in Due Course. 97. When Subject to Original Defenses. 98. Who Deemed Holder in Due Course. Sec. 90 (51). Right of Holder to Sue; Payment. The holder of a negotiable instrument may sue thereon in his own name (a) ; and payment to him in due course discharges the in- strument, (b) (a) See § 67 (37), subd. 2. (b) See §§ 148 (88), 200 (119). Sec. 91 (52). What Constitutes a Holder in Due Cowse. A holder in due course is a holder who has taken the instrument under the following conditions : 1. That it is complete and regular upon its face; (a) 2. That he became the holder of it before it was overdue, and with- out notice that it had been previously dishonored, if such was the fact; 3. That he took it in good faith and for value; (b) 4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. (c) (a) See §§ 32 (13), 38 (14). (b) See § 51 (25). (c) See § 95 (56). [Note. The Wisconsin act (§ 1676-22) adds a fifth subdivision: "5. That he took it in the usual course of business."] 6 §§ 51-59, Colo., Conn., D. C, Fla., Mass., N. O., N. D., Or., Tenn., Utah, Va., and Wash.; |§ 70-78, Md.; §§ 59-67, R. I.; §§ 1676-21 to 1676-29, Wis. EIGHTS OF HOLDER. 4S1 Sec. 92 (53). "When Person not Deemed Holder in Due Course. Where an instrument payable on demand (a) is negotiated an un- reasonable length of time after its issue, the holder is not deemed a holder in due course. (a) See § 26 (7). Seo, 93 (54). Notice hefore Full Amount Paid. Where the transferee receives notice of any infirmity in the in- strument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid thereof, he will be deemed" a holder in due course only to the extent of the amount theretofore paid by him. Sec. 94 (55), Whm Title Defedme. The title of a person who negotiates an instrument is defectiTe within the meaning of this act when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he nego- tiates it in breach of faith, or under such circumstances as amount to a fraud, (a) (a) The Wisconsin act (§ 1676-25) adds the following: "And the title ol such person is absolutely void when such instrument or signature was so pro- cured from a person who did not know the nature of the instrument and could not have obtained such knowledge by the use of ordinary care." Sec. 95 (56). What Constitutes Notice of Defect. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the in- strument amounted to bad faith. Seo. 96 (57). Rights of Solder in Due Course. A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instru- ment for the full amount thereof against all parties liable thereon, (a) (a) The Wisconsin act (§ 1676-27) adds the following: "Except as provided in sections 1944 and 1945 of these statutes, relating to insurance premiums, and also in cases where the title of the person negotiating such instrument ia void under the provision of section 1676-25 of this act." 452 THE NEGOTIABLE INSTRUMENTS LAW. Sec. 97 (58). TFAera Subject to Original Defenses. In the hands of any holder other than a holder in due course, a megotiable instrument is subject to the same defenses as if it were .monnegotiable. But a holder who derives his title through a holder in due course, and who is not himself a party to any fraud (a) or illegality affecting the instrument, has all the rights of such former Jholder in respect of all parties prior to the latter, (b) (a) The Wisconsin act (§ 1676-28) inserts after "fraud," "duress." ■(c) (a) See § 145 (85). (b) See § 4 (193). (c) See §§ 241 (144), 322 aSC). Sec. 132 (72). Wliat Constitutes Sufficient Presentment. Presentment for payment, to be sufficient, must be made: 1. By the holder, or by some person authorized to receive payment on his behalf; 2. At a reasonable hour on a business day; 3. At a proper place as herein defined ; (a) 4. To the person primarily liable on the instrument, or if he is absent or inaccessible, to any person found at the place where the presentment is made. (a) See § 133 (73). Sec. 133 (73). Phce of Presentment. Presentment for payment is made at the proper placet 1. Where a place of payment is specified in the instrument and it is there presented; 2. Where no place of payment is specified, but the address of the person to make payment is given in the instrument and it is there presented; 3. Where no place of payment is specified and no address is given and the instrument is presented at the usual place of business or residence of the person to make payment; 4. In any other case if presented to the person to make pavment wherever he can be found, or if presented at his last known place of business or residence. Sec. 134 (74). Instrument Mast he Exhibited. The instrument must be exhibited to the person from whom pay- ment is demanded, and when it is paid must be delivered up to the party paying it 458 THE NEGOTIABLE INSTRUMENTS LAW. oec. 135 (75). Presentment where Instrument Payable at Bank. Where the instrument is payable at a bank, presentment for pay- ment must be made during banking hours, unless the person to make payment has no funds there to meet it at any time during the day, in which case presentment at any hour before the bank is closed on that day is sufficient. Sec. 136 (76). Presentment where Principal Debtor is Dead. Where the person primarily liable on the instrument is dead, and no place of payment is specified, presentment for payment must be made to his personal representative, if such there be, and if with the exercise of reasonable diligence he can be found. Sec. 137 (77). Presentment to Persons Liable as Partners. Where the persons primary liable on the instrument are liable as partners, and no place of payment is specified, presentment for payment may be made to any one of them, even though there has been a dissolution of the firm. Sec. 138 (78). Presentment to Joint Debtors. Where there are several persons not partners, primarily liable on the instrument, and no place of payment is specified, presentment must be made to them all. Sec. 139 (79). When Presentment not Required to Charge the Dramer. Presentment for payment is not required in order to charge the drawer where he has no right to expect or require that the drawee or acceptor will pay the instrument, (a) (a) See § 185 (114), subd. 4. Sec. 140 (80). When Presenlmient not Pequired to Charge th Indorse/r. Presentment for payment is not required in order to charge an indorser where the instrument was made or accepted for his ac- commodation, and he has no reason to expect that the instrument will be paid if presented, (a), (a) See § 186 (115), subd. 3. Sec. 141 (81). When, Delay in Malcing Presentment is Excused. Delay in making presentment for payment is excused when the delay is caused by circumstances beyond the control of the holder PRESENTMENT FOR PAYMENT. 459 and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, presentment must be made with reasonable diligence. Sec. 142 (82). When, Presentment May be Dispensed with. Presentment for payment is dispensed with: 1. Where after the exercise of reasonable diligence presentment as required by this act can not be made; 2. Where the drawee is a fictitious person; (a) 3. By waiver of presentment express or implied, (b) (a) See § 185 (114), subd. 2. (b) See §§ 180 (109)-182 (111). Sec. 143 (83). When Instrument Dishonored by Non-Payment, The instrument is dishonored by non-payment when: 1. It is duly presented for payment and payment is refused or can not be obtained; or 2. Presentment is excused and the instrument is overdue and un- paid. Sec. 144 (84). IdabUity of Person Secondarily Liable, When Instrument Dishonored. Subject to the provisions of this act, when the instrument is dis- honored by non-payment, an immediate right of recourse to all par- ties secondarily liable thereon, accrues to the holder. Sec. 145 (85). Time of Maturity. Every negotiable instrument is payable at the time fixed therein without grace. When the day of maturity falls upon Sunday, or a holiday, the instrument is payable on the next succeeding business day. (a) Instruments falling due or becoming payable (b) on Sat- urday are to be presented for payment on the next succeeding busi- ness day, except that instruments payable on demand may, at the •option of the holder, be presented for payment before twelve o'clock noon on Saturday when that entire day is not a holiday. (a) The Wisconsin act (§ 1678-15) omits the sentence beginning "Instru- ments falling due," etc. In the Colorado act (§ 85) this sentence is omitted, and the following substi- tuted: "Instruments falling due on any day, in any place where any part of fiuch day is a holiday are to be presented for payment on the next succeeding business day, except that instruments payable on demand may, at the option 460 THE NEGOTIABLE INSTRUMENTS LAW. of the holder, be presented for payment during reasonable hoiirs of the part of such day which is not a holiday." The North Carolina act (§ 197) provides: "The laws now in force In this- state with regard to days of grace shall remain in force and shall not be con- strued to be repealed by this act." In Massachusetts this section has been modified (Laws. 1899, c. 130) as follows: "On all drafts and bills of exchange made payable within this Com- monwealth at sight, three days of grace shall be allowed, unless there is an express stipulation therefor to the contrary." (b) The words "on becoming payable" were added to the New Yovk act by- amendment. They do not appear in the other states. Sec. 146 (86). Time; How Computed. Where the instrument is payable at a fixed period after date, after- sight, or after the happening of a specified event, the time of payment is determined by excluding the day from which the time is to begin, to run, and by including the date of payment Sec. 147 (87). Rule where Instrument Payable at Bank. Where the instrument is made payable at a bank it is equivalent to an order to the bank to pay the same for the account of the prin- cipal debtor thereon. Sec. 148 (88). What Constitutes Payment in Due Course. Payment is made in due course when it is made at or after the ma- turity of the instrument to the holder (a) thereof in good faith and without notice that his title is defective, (b) (a) See § 2 (191) "holder." (b) See §§ 94 (55), 95 (56). 200 (119). NOTICE OF DISHONOR. 461 ABTICLE Vin.« NOTICE OF DISHONOR. Section 160. To Whom Notice of Dishonor Must be Given. 161. By Whom Given. 162. Notice Given by Agent. 163. Effect of Notice Given on Behalf of Holder. 164. Effect where Notice is Given by Party Entitled Thereto. 165. When Agent may Give Notice. 166. When Notice Sufficient 167. Form of Notice. 168. To Whom Notice May be Given, 169. Notice where Party is Dead. 170. Notice to Partners. 171. Notice to Persons Jointly Liable. 172. Notice to Bankrupt. 173. Time within Which Notice Must be Given. 174. Where Parties Reside in Same Place. 175. Where Parties Reside in Different Places. 176. When Sender Deemed to have Given Due Notice, 177. Deposit in Post-Offlce, What Constitutes. 178. Notice to Subsequent Parties, Time of. 179. Where Notice Must be Sent. 180. Waiver of Notice. 181. Whom Affected by Waiver. 182. Waiver of Protest. 183. When Notice Dispensed with. 184. Delay in Giving Notice; How Excused. 185. When Notice Need not be Given to Drawer. 186. When Notice Need not be Given to Indorser. 187. Notice of Non-Payment where Acceptance Refused, 188. Effect of Omission to Give Notice of Non-Acceptance. 189. When Protest Need not be Made; When Must be Made. Sec. 160 (89). To Whom Notice of Dishonor Miist he Given. Except as herein otherwise provided (a), when a negotiable in- strument has been dishonored by non-acceptance (b) or non-payment (c), notice of dishonor must be given to the drawer and to each in- > §§ 89-118, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Ta., and Wash.; f§ 108-137, Md.; §§ 97-126, R. I.; §§ 1678-19 to 1678-48, Wia 462 THE NEGOTIABLE INSTRUMENTS I;AW. dorser, and any drawer or indorser to whom such notice is not given is discharged. (a) See §§ 180 (109)-187 (116). (b) See §§ 246 (149)-248 (151). (c) See §§ 143 (83), 144 (84). Sec. 161 (90). By Whom Given. The notice may be given by or on behalf of the holder, or by or on behalf of any party to the instrument who might be compelled to pay it to the holder, and who, upon taking it up, would have a right to reimbursement from the party to whom the notice is given. Sec. 162 (91). Notice Given by Agent. Notice of dishonor may be given by an agent either in his own name or in the name of any party entitled to give notice, whether that party be his principal or not. Sec. 163 (92). Effect of Notice Given on Behalf of Holder. Where notice is given by or on behalf of the holder, it enures for the benefit of all subsequent holders and all prior parties who have a right of recourse against the party to whom it is given. Sec. 164 (93). Effect where Notice is Given by Party Entitled Thereto. Where notice is given by or on behalf of a party entitled to give notice, it enures for the benefit of the holder and all parties subse- quent to the party to whom notice is given. Sec. 165 (94). Whm Agent may Give Notice. Where the instrument has been dishonored in the hands of an agent, he may either himself give notice to the parties liable thereon, or he may give notice to his principal. If he give notice to his prin- cipal, he must do so within the same time as if he were the holder, and the principal upon the receipt of such notice has himself the same time for giving notice as if the agent had been an independent holder. Sec. 166 (95). When Notice Sufficient. A written notice need not be signed and an insuflScient written no- tice may be supplemented and validated by verbal communication. A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby. NOTICE OF DISHONOK. 463 Sec. 167 (96). Form of Notice. The notice may be in writing or merely oral, and may be given in any terms which sufficiently identify the instrument, and indicate that it has been dishonored by non-acceptance or non-payment. It may in all cases be given by delivering it personally or through the mails, (a) (a) See §§ 177 (106), 179 (108). Sec. 168 (97). To Whom Notice May he Given. Notice of dishonor may be given either to the party himself or to • his agent in that behalf. Sec. 169 (98). Notice where Party is Dead. When any party is dead, and his death is known to the party giving notice, the notice must be given to a personal representative, if there be one, and if with reasonable diligence, he can be found. If there be no personal representative, notice may be sent to the last residence or last place of business of the deceased. Sec. 170 (99). Notice to Partners. Where the parties to be notified are partners, notice to any one partner is notice to the firm even though there has been a dissolu- tion. Sec. 171 (100). Notice to Persons Jointly Liable. Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others. Sec. 172 (101). Notice to Bankrupt. Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. Sec. 173 (102). Time within Which Notice Must he Given. Notice may be given as soon as the instrument is dishonored ; and unless delay is excused as hereinafter provided, must be given within the times fixed by this act Sec. 174 (103). Where Parties Reside in Same Place. Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times: 464 THE NEGOTIABLE INSTRUMENTS LAW. 1. If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day fol- lowing; 2. If given at his residence, it must be given before the usual hours of rest on the day following; 3. If sent by maU, it must be deposited in the post-office in time to reach him in usual course on the day following. Sec. 175 (104). Where Parties Reside in Different Places. Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times : 1. If sent by mail, it must be deposited in the post-office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter. 2. If given otherwise than through the post-office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post-office within the time specified in the last subdivision. Sec. 176 (105). When Sender Deemed to have Given Due Notice. Where notice of dishonor is duly addressed and deposited in the post-office, the sender is deemed to have given due notice, notwith- standing any miscarriage in the mails. Sec. 177 (106). Deposit in Post-Office; What Constitutes. Notice is deemed to have been deposited in the post-office when deposited in any branch post-office or in any letter box under the control of the post-office department. Sec. 178 (107). Notice to Subsequent Party; Time of. Where a party receives notice of dishonor, he has, after the re- ceipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor. Sec. 179 (108). Where Notice Must be Sent. Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows: 1. Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters; or, NOTICE, OF DISHONOR. 465 2. If he live in one place, and have his place of business in an- other, notice may he sent to either place j or, 3. If he is sojourning in another place, notice may be sent to the place where he is so sojourning. But where the notice is actually received by the party within the time specified in this act, it will be sufflcient though not sent in ac- cordance with the requirements of this section. Sec. 180 (109). Waiver of Notice. Notice of dishonor may be waived, either before the time of giving" notice has arrived or after the omission to give due notice, and the- waiver may be express or implied.' Sec. 181 (110). Whom Affected by Waiver. Where the waiver is embodied in the instrument itself, it is bind- ing upon all parties; but where it is written above the" signature of an indorser, it binds him only. Sec. 182 (111). Waiver of Protest. A waiver of protest, whether in the case of a foreign bill of ex- change or other negotiable instrument, is deemed to be a waiver not only of a formal protest, but also of presentment and notice of dis- honor. Sec. 183 (112). When Notice is Dispensed with. Notice of dishonor is dispensed with when, after the exercise ol reasonable diligence, it can not be given to or does not reach the parties sought to be charged. Sec. 184 (113). Dday in Giving Notice; How Excused. Delay in giving notice of dishonor is excused when the delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct or negligence. When the cause of delay ceases to operate, notice must be given with reasonable dil- igence. Sec, 185 (114). When Notice Need not he Given to Drawer, Notice of dishonor is not required to be given to the drawer in either of the following cases: NEG.BILLS.— 30 466 THE NEGOTIABLE INSTRUMENTS LAW. 1. Where the drawer and drawee are the same person ; 2. Where the drawee is a fictitious person or a person not having capacity to contract; 3. Where the drawer is the person to whom the instrument is presented for payment; 4. Where the drawer has no right to expect or require that the drawee or acceptor will honor the instrument; 5. Where the drawer has countermanded payment Sec. 186 (115). When Notice Need not be Given to Indorser. Notice of dishonor is not required to be given to an indorser in either of the following cases : 1. Where the drawee is a fictitious person or a person not having capacity to contract, and the indorser was aware of the fact at the time he indorsed the instrument; 2. Where the indorser is the person to whom the instrument is presented for payment; 3. Where the instrument was made or accepted for his accommo- dation. Sec. 187 (116). Notice of Non-Payment where Acceptance Refused. Where due notice of dishonor by non-acceptance has been given, notice of a subsequent dishonor by non-payment is not necessary, unless in the meantime the instrument has been accepted. Sec. 188 (117). Effect of Omission to Give Notice of Non-Acceptance. An omission to give notice of dishonor by non-acceptance does not prejudice the rights of a holder in due course subsequent to the omission, (a) (a) The Wisconsin act (§ 1678-^7) adds: "But this shall not be construed to revive any liability discharged by such omission." Sec. 189 (118). When Protest Need not be Made; When Must be Made. Where any negotiable instrument has been dishonored it may be protested for non-acceptance or non-payment, as the case may be; but protest is not required, except in the ease of foreign bills of ex- change, (a) (a) See §§ 260 (152)-268 1160). DISCHARGE OF NEGOTIABLE INSTRUMENTS. 467 ARTICLE IX.' DISCHARGE OF NEGOTIABLE INSTRUMENTS, Section 200. Instrument; How Discharged. 201. When Persons Secondarily Liable on, Discharged. 202. Right of Party who Discharges Instrument. 203. Renunciation by Holder. 204. Cancellation; Unintentional; Burden of Proof. 205. Alteration of Instrument; Effect of. 206. What Constitutes a Material Alteration. Sec. 200 (119). Instrument; How DischQ.rged, A negotiable instrument is discharged: 1. By payment in due course by or on behalf of the principal debtor; (a) 2. By payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; (b) 3. By the intentional cancellation thereof by the holder; (c) 4. By any other act which will discharge a simple contract for the payment of money; 5. When the principal debtor becomes the holder of the instrument at or after maturity in his own right, (d) (a) See § 148 (88). (b) See § 55 (29). ■ (c) See § 204 (123). (d) See § 80 (50). Sec. 201 (120). WJien Person Secondarily Liable on, Discharged. A person secondarily liable on the instrument is discharged: 1. By any act which discharges the instrument; 2. By the intentional cancellation of his signature by the hold- «r; (a) 3. By the discharge of a prior party; 4. By a valid tender of payment made by a prior party; (b) 5. By a release of the principal debtor, unless the holder's right ■of recourse against the party secondarily liable is expressly re- served; • §§ 119-125, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Ta., and Wash.; §§ 138-144, Md.; §§ 127-133, R. I.; §§ 1679 to 1679-6, Wis. 468 ' THE NEGOTIABLE INSTRUMENTS LAW. 6. By any agreement binding upon the holder to extend the time of payment or to postpone the holder's right to enforce the instrument, unless the «ght- of recourse against such party is expressly reserv- ed, (c) " (a) See § 78 (48). (b) The Wisconsin act (§ 1679-1) adds a subdivision (4a) as follows: "By giving up or applying to other piu^oses collateral security applicable to the debt, or, there being in the holder's hands or within his control the means of complete or partial satisfaction, the same are applied to- other purposes." (c) The "Wisconsin act substitutes for s.ubdivision 6 the following: "By an agreement binding upon the holder to extend the time of payment, or to post- pone the holder's right to enforce the instrument unless made with the assent, prior or subsequent, of the party secondarily liable, unless the right of re- course against such party is expressly reserved, or imless he is fully in- demnified." The acts of Colorado, Connecticut, District of Columbia, Florida, Massa- chusetts, North Carolina, North Dakota, Oregon, Tennessee, Utah, Virginia, and Washington insert after "right to enforce the instrument" the words "un- less made with the assent of the party secondarily liable, or." -:Sec: 202 (121). Right of Party who Discharges Instrument, Where the instrument is paid by a party secondarily liable thereon. It is not discharged; but the party so paying it is remitted to his former rights as regards all prior parties, and he may strike out his own and all subsequent indorsements, and again negotiate the instrument, except: 1. Where it is payable to the order of a third person, and has been paid by the drawer; and, 2. Where it was made or accepted for accommodation, and has been paid by the party accommodated. Sec. 203 (122). Remmdation by Holder. The holder may expressly renounce his rights against any party to the instrument, before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument, discharges the in- strument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon. DISCHARGE OF NEGOTIABLE INSTRUMENTS. 4&9 Sec. 204 (123). Cancellation; Unintentional; Burden of Proof. A cancellation made unintentionally, or under a mistake, or with- out the authority of the holder, is inoperative; but where an instru- ment or any signature thereon appears to have been canceled the burden of proof lies on the party who alleges that the cancellation was made- unintentionally, Or under a mistake or without authority. Sec. 205 (124). Alteration of Instrument; Effect of. Where a negotiable instrument is materially altered without the assent of all parties liable thereon; it is avoided, except as against a party who has himself made, authorized or assented, (a), to the al- teration and subseqaent indorsers. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof ac- cording to its original tenor. , (a) The Wisconsin act (§ 1679-5) Inserts after "assented," "orally or in writing." Sec. 206 (125). WTiat Constitutes a Material Alteration, .Any jtJtecation which changes: 1. The date; (a) 2. The sum payable, either for principal or interest] 3. The time or place of payment; ' ' " ' 4. The num.ber or the relations of the parties;- v^ .- , 5. The medium or currency in which payment is to be made; • Or which adds a place of payment where no place of payment is specified, or any other change or addition which alters the efEeqt of the instrument in any respect, is a material alteratiotL (b) (a) See § 32 (13). (b) Sees 33 (14)^ ' ' : ft' 470 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE X."' BILLS OF EXCHANGE— FORM AND INTERPRETATION. Section 210. Bill of Exchange Defined. 211. Bill not an Assignment of Funds In Hands of Drawee. 212. Bill Addressed to More than One Drawee. 213. Inland and Foreign Bills of Exchange. 214. When Bill May be Treated as Promissory Note. 215 Drawee in Case of Need. Sec. 210 (126). Bia of Exchange Defined. A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer. Sec. 211 (127). £ill not an Assignment of Fvnds m Hands of A bill of itself does not operate as an assignment of the funds in the hands of the drawee available for the payment thereof and the drawee is not liable on the bill unless and until he accepts the same. Sec. 212 (128), JBiH Addressed to More than One Drawee. A bill may be addressed to two or more drawees jointly, whether they are partners or not; but not to two or more drawees in the al- ternative or in succession, (a) (a) The Wisconsin act (§ 1680b) omits "or in succession." Sec. 213 (129). Inland and Foreign Bills of Exchange. An inland bill of exchange is a bill which is, or on its face pur- ports to be, both drawn and payable within this state. Any other bill is a foreign bill. Unless the contrary appears on the face of the bill, the holder may treat it as an inland bill. Sec 214 (130). When Bill May he Treated as Promissory Note. Where in a bill drawer and drawee are the same person, or where the drawee is a fictitious person, or a person (a) not having capacity 10 §§ 126-131, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 145-150, Md.; §§ 134-139, B. I.; §§ 1680-1680e, Wis. BILLS OF EZCHANGE — -FORM AND INTEEPRETATION. 1^71 to contract, the holder may treat the instrument, at his option, ei- ther as a bill of exchange or a promissory note, (a) The Wisconsin act (§ 1680d) omits "or a person." Sec. 215 (131). Referee in Case of Need. The drawer of a bill and any indorser may insert thereon the name of person to whom the holder may resort in case of need, that is to say, in ease the bill is dishonored by non-acceptance or non-payment. Such person is called the referee in case of need. It is in the option of the holder to resort to the referee in case of need or not as he may see fit. 472 . IHE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XI." ACCEPTANCE OF BILLS OF EXCHANGES. Section 220. Acceptance, How Made, et cetera. 221. Holder Entitled to Acceptance on Face of Bill. 222. Acceptance by Separate Instrument 223. Promise to Accept; When Equivalent to Acceptance. 224. Time Allowed Drawee to Accept. 225. Liability of Drawee Retaining ot Destroying Bill. 226. Acceptance of Incomplete Bill. 227. Kinds of Acceptance. 228. Wbat Constitutes a General Acceptance. 229. Qualified Acceptance.^ 230. Eights of Parties as to Qualified Acceptance. Sec. 220 (132). Acceptance; Haw Made, et cetera. The acceptance of a bill is the signification by the drawee of his assent to the order of the drawer. The acceptance must be in writ- ing and signed by the drawee. It must not express that the drawee will perform his promise by any other means than the payment of money. Sec. 221 (133). Solder Entitled to Acceptance rni Face of BUI. The holder of a bill presenting the same for acceptance may re- quire that the acceptance be written on the bill, and if such request is refused, may treat the bill as dishonored. Sec. 222 (134). Acceptance by Separate Instrument. Where an acceptance is written on a paper other than the bill itself, it does not bind the acceptor except in faTor of a person to whom it is shown and who, on the faith thereof, receives the bill for value. Sec. 223 (135). Promise to Accept; When Equivaknt to Acceptance. An unconditional promise in writing to accept a bill before it is drawn is deemed an actual acceptance in favor of every person who, upon the faith thereof, receives the bill for value. 11 §§ 132-142, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 151-161, Md.; §§ 140-150, R. I.; §§ 1680f-1680p, Wis. ACCEPTANCE OF BILLS OF EXCHANGE. 473 Sec. 224 (133). KmeAUowed Drawee to Accept. The drawee is allowed twenty-four hours after presentment in which to decide whether or not he will accept the bill; but the ac- ceptance if given dates as of the day of presentation. Sec. 225 (137). Liability of Drawee Retaining or Destroying Bill. Where a drawee to whom a bill is delivered for acceptance destroys the same, or refuses within twenty-four hours after such delivery, or within such other period as the holder may allow, to return the bill accepted or non-accepted to the holder, he will be deemed to have accepted the same, (a) (a) The Wisconsin act (§ 1680k) adds: "Mere retention of the bill Is not acceptance." Sec. 226 (138). Acceptance of Incomplete Bill. A bill may be accepted before it has been signed by the drawer, or while otherwise incomplete (a), or when it is overdue, or after it has been dishonored by a previous refusal to accept, oi' by non- payment. But when a bill payable after sight is dishonored by non- acceptance and the drawee subsequently accepts it, the holder, in the absence of any different agreement, is entitled to have the bill accepted as of the date of the first presentment. (a) See § 33 (14). Sec. 227 (139). Kinds of Acceptances. An acceptance is either general or qualified. A general accept- ance assents without qualification to the order of the drawer. A qualified acceptance in express terms varies the effect of the bill as 4rawn. Sec. 228 (140). Whai Constitutes a General Acceptance, An acceptance to pay at a particular place is a general acceptance unless it expressly states that the bill is to be paid there only and not elsewhere. Sec. 229 (141). Qualified Acceptance. An acceptance is qualified, which is: 1. Conditional, that is to say, which makes payment by the ac- ceptor dependent on the fulfilment of a condition therein stated; 2. Partial, that is to say, an acceptance to pay part only of the amount for which the bill is drawn; 474 THE NEGOTIABLE INSTRUMENTS LAW. 3. Local, that is to say, an acceptance to pay only at a particular place; (a) 4. Qualified as to time; 5. The acceptance of some one or more of the drawees, but not of all., (a) See § 228 (140). Sec. 230 (142). Eights of Parties as to Qualified Acceptance, The holder may refuse to take a qualified acceptance, and if he does not obtain an unqualified acceptance, he may treat the bill as dishonored by non-acceptance. Where a (Qualified acceptance is tak- en, the drawer and indorsers are discharged from liability on the bill, unless they have expressly or impliedly authorized the holder to- take a qualified acceptance, or subsequently assent thereto. When the drawer or an indorser receives notice of a qualified acceptance, he must within a reasonable time express his dissent to the holder, or he will be deemed to have assented thereto. PEESENTMENT OF BILLS OF EXCHANGE FOR ACCEPTANCE. 475 I ARTICLE XII.'' PRESENTMENT OF BILLS OF EXCHANGE FOR ACCEPTANCE, Section 240. When Presentment for Acceptance Must be Made. 241. When Failure to Present Releases Drawer and Indorser. 242. Presentment; How Made. 243. On what Days Presentment May be Made. . 244. Presentment; Where Time is Insufficient. 245. When Presentment is Excused. 246. When Dishonored by Non-Acceptance. - 247. Duty of Holder where Bill not Accepted. 248. Rights of Holder where Bill not Accepted. Sec. 240 (143). When Presentment for Acceptance Must be Made. Presentment for acceptance must be made: 1. Where the bill is payable after sight, or in any other case where presentment for acceptance is necessary in order to fix the maturity of the instrument; or, 2. Where the bill expressly stipulates that it shall be presented for acceptance; or, , 3. Where the bill is drawn payable elsewhere than at the resi- dence or place of business of the drawee, (a) In no other case is presentment for acceptance necessary, in order to render any party to the bill liable, (a) See § 244 (147). Sec. 241 (144). When Failure to Present Pelea^es Drawer and Indorser. Except as herein otherwise provided, the holder of a 'bill which is required by the next preceding section to be presented for accept- ance must either present it for acceptance or negotiate it within a reasonable time, (a) If he fails to do so, the drawer and all in- dorsers are discharged. (a) See § 4 (193). Sec. 242 (145). Presentment; How Made. Presentment for acceptance must be made by or on behalf of the holder at a reasonable hour on a business day, and before the bill "i§ 143-151, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 162-170, Md.; §§ 151-159, R. I.; §§ 1681 to 1681-8, Wis. 476 ^ THE NEGOTIABLE INSTRUMENTS LAW. is overdue, to the drawee (a) or some person authorized to accept or refuse acceptance on his behalf; and 1. Where a bill is addressed to two or more drawees who are not partners, presentment must be made to them all, unless one has authority to accept or refuse acceptance for all, in which case pre- sentment may be made to him only; (b) 2. Where the drawee is dead, presentment may be made to his personal representative; (c) 3. Where the drawee has been adjudged a bankrupt or an insol- vent, or has made an assignment for the benefit of creditors, present- ment may be made to him or to his trustees or assignee. (a) "Drawer" appeared In the original New York act, a mistake which has been followed in some other states. ■ (b) See § 229 (141), subd. 5. (c) See § 245 (148), subd, 1. Sec. 243 (14:6). On WhM Days Presentment May he Made. A bill may be presented for acceptance on any day on which nego- tiable instruments may be presented for payment under the provi- sions of sections 132 and 145 of this act. (a) When Saturday is not otherwise a holiday, presentment for acceptance may be made be- fore twelve o'clock noon on that day. (b) (a) The sections were referred to as §§ 72, 85, by mistake in the original New York act. (b) The Colorado act (§ 146) substitutes for the last sentence the following: "When any day is in part a holiday, presentment for acceptance may be made 'during reasonable hours of the part of such day which is not a holiday." The Wisconsin act (§ 1681-3) omits the last sentence. Sec. 244 (147). Presentment; Where Tvme is Insufficient. Where the holder of a bill drawn payable elsewhere than at the j)lace of business or the residence of the drawee has not time with the exercise of reasonable diligence to present the bill for accept- ance before presenting it for payment on the day that it falls due, the delay caused by presenting the bill for acceptance before pre- senting it for payment is excused and does not discharge the draw- ers and indorsers. (a) ' (a) See § 240 (148). PEESBKTMENT OF BILLS OF EXCHANGE FOR ACCEPTANCE. 477. Sec. 245 (148). Where Presentment is Excused. Presentment for acceptance is excused and a bill may be treated as dishonored by non-acceptance in either of the following cases: 1. Where the drawee is dead (a), or has absconded, or is a ficti- tious person or a person not having capacity to contract by bill; • 2. Where after the exercise of reasonable diligence, presentment cannot be made; 3. Where although presentment has been irregular, acceptance has been refused on some other ground, (a) See § 242 (145), subd. 2. Sec. 246 (149). When Dishonored T/y Non- Acceptance. A bill is dishonored by non-acceptance: 1. When it is duly presented for acceptance, and such an accept- ance as is prescribed by this act is refused or cannot be obtained; or,, 2. When presentment for acceptance is excused (a) and the bill is sot accepted. (a) In North Carolina act (§ 149) "executed" (sic). Sec. 247 (150). Duby of Solder where BUI not Accepted. Where a bill is duly presented for acceptance and is not accepted within the prescribed time, the person presenting it must treat the bill as dishonored by non-acceptance or he loses the right of re- course against the drawer and indorsers. (a) (a) See § 188 (117). Sec. 248 (151). Bights of Holder where Bill not Accepted. When a bill is dishonored by non-acceptance, an immediate right of recourse against the drawers and indorsers accrues to the holder, and no presentment for payment is necessary. 478 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XIII." PROTEST OF BILLS OP EXCHANGE. Section 260. In what Cases Protest Necessary. 261. Protest; How Made. 262. Protest; By Whom Made. 263. Protest; When to be Made. 264. Protest; Where Made. 265. Protest Both for Non-Acceptance and Non-Payment 266. Protest before Maturity where Acceptor Insolvent 267. When Protest Dispensed with. 268. Protest; Where Bill is Lost, et cetera. Sec. 260 (162). In what Cases Protest Necessa/ry. Where a foreign bill (a) appearing on its face to be such is dis- honored by non-acceptance, it must be duly protested for non-accept- ance, and where such a bill which has not previously been dishon- ored by non-acceptance is dishonored by non-payment, it must be duly protested for non-payment. If it is not so protested, the draw- er and indorsers are discharged. Where a bill does not appear on its face to be a foreign bill, protest thereof in case of dishonor is unnecessary. (a) See § 213 (129). Sec. 261 (153). Protesi; How Made. The protest must be annexed to the bill, or must contain a copy thereof, and must be under the hand and seal of the notary making it, and must specify: 1. The time and place of presentment; 2. The fact that presentment was made and the manner thereof; 3. The cause or reason for protesting the bill; 4. The demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found. fiec. 262 (154). Protest; By Whom Made. Protest may be made by: 1. A notary public; or, 2. By any respectable resident of the place where the bill is dis- honored, in the presence of two or more credible witnesses. 13 §§ 152-160, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Ta., and Wash.; §§ 171-179, Md.; §§ 160-168, R. I.; §§ 1681-9 to 1681-17, Wis. PEOTEST OF BILLS OF EXCHANGE. 479 Sec. 263 (156). Protest; When to he Made. When a bill is protested, such protest must be made on the day of its dishonor, unless delay is excused as herein provided, (a) When a bill has been duly noted, the protest may be subsequently extended as of the date of the noting. (a) See § 267 (159). Sec. 264 (156). Prated; Where Made. A bill must be protested at the place where it is dishonored, except that when a bill drawn payable at the place of business or residence of some person other than the drawee, has been dishonored by non- acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to, or demand on, the drawee is necessary. Sec. 265 (157). Protest Both for Non-Acceptance and Non-Payment. A bill which has been protested for non-acceptance may be subse- quently protested for non-payment. Sec. 266 (158). Protest before Maturity where Acceptor Insolvent. Where the acceptor has been adjudged a bankrupt or an insol- vent or has made an assignment for the benefit of creditors, before the bill matures, the holder may cause the bill to be protested for better security against the drawer and indorsers. Sec. 267 (159). WTten Protest Dispensed with. Protest is dispensed with by any circumstances which would dis- pense with notice of dishonor, (a) Delay in noting or protesting is excused when delay is caused by circumstances beyond the control of the holder and not imputable to his default, misconduct, or neg- ligence. When the cause of delay ceases to operate, the bill must be noted or protested with reasonable diligence. (a) See §§ 180 (109) -186 (115), 188 (117). •Sec. 268 (160). Protest where BiU is Lost, et cetera. Where a bill is lost or destroyed or is wrongly detained from the person entitled to hold it, protest may be made on a copy or written particulars thereof. 480 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XIV." AOOBPTANCE OP BILLS OF EXCHANGE FOR HONOR. Section 280. When Bill May be Accepted for Honor. 281. Acceptance for Honor; How Made. 282. When Deemed to be an Acceptance for Honor of the Drawer, 283. Liability of Acceptor for Honor. 284. Agreement of Apceptor for Honor. 285. Maturity of Bill Payable after Sight; Accepted for Honor. 286. Protest of BUI Accepted for Honor, et cetera. 287. Presentment for Payment to Acceptor for Honor; How Made, 288. When Delay In Making Presentment is Excused. 289. Dishonor of Bill by Acceptor for Honor. Sec. 280 (161). Whe/n Bill May he Accepted for Honor. Where a bill of exchange has been protested for dishonor by non- acceptance or protested for better security and is not overdue, any person not being a party already liable thereon may, with the con- sent of the holder, interTene and accept the bill supra protest for the honor ef any patty liable thereon or for the honor of the person for whose account the bill is drawn. The acceptance for honor may be for part only of the sum for which the bill is drawn; and where there has been an acceptance for honor for one party, there may be a further acceptance by a different person for the honor of another party. Sec. 281 (162). Acceptance for Honor; How Made. An acceptance for honor supra protest must be in writing and indi- cate that it is an acceptance for honor, and must be signed by the acceptor for honor. Sec. 282 (163). When Deemed to be an Acceptance for Honor cf the Drawer. Where an acceptance for honor does not expressly state for whose honor it is made, it is deemed to be an acceptance for the honor of the drawer. Sec. 283 (164:). JdahiUi/y of Acceptor for Honor. The acceptor for honor is liable to the holder and to all parties to the bill subsequent to the party for whose honor he has accepted. 14 §i 161-170, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utai, Va., and Wash.; §§ 180-189, Md.; §§ 169-178, R. L; §§ 1681-18 to 1681-27. Wis. ACCEPTANCE OF BILLS OF EXCHANGE FOR HONOR. 481 Sec. 284 (165). Agreement of Acceptor for Honor. ■ The acceptor for honor by such acceptance engages that he will on due presentment pay the bill according to the terms of his accept- ance, provided it shall not have been paid by the drawee, and pro- vided also, that it shall have been duly presented for payment and protested for non-payment and notice of dishonor given to him. Sec. 285 (166). Maturity of Bill Payable after Sight; Accepted for Honor. Where a bill payable after sight is accepted for honor, its maturity is calculated from the date of the noting for non-acceptance and not from the date of the acceptance for honor. S(C. 286 (167). Protest of Bill Accepted for Honor, et cetera. Where a dishonored bill has been accepted for honor supra protest or contains a reference in case of need, it must be protested for non- payment before it is presented for payment to the acceptor for honor or referee in case of need. Sec. 287 (168). Presentment for Payment to Acceptor for Honor; Hon. Made. Presentment for payment to the acceptor for honor must be made as follows: 1. If it is to be presented in the place where the protest for non- payment was made, it must be presented not later than the day fol- lowing its maturity; 2. If it is to be presented in some other place than the place where it was protested, then it must be forwarded within the time specified in section 175. (a) (a) In original New York act "section 104" by mistake. Sec. 288 (169). When Delay in Making Presentment is Excused- The provisions of section one hundred and forty-one (a) apply where there is delay in making presentment to the acceptor for honor or referee in case of need, (a) In original New York act "section 81" by mistake. Sec. 289 (170). Dishonor of Bill hy Acceptor for Honor. When the bill is dishonored by the acceptor for honor it must be protested for non-payment by him. NEG.BILLS.-31 482 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XV. '^ PAYMENT OP BILLS OF EXOHAIJGE FOB HONOE. Section 300. Who may Make Payment for Honor. 301. Payment for Honor; How Made. 302. Declaration before Payment for Honor. 303. Preference of Parties Offering to Pay for Honor. 804. Effect on Subsequent Parties where Bill is Paid for Honor. 305. Where Holder Refuses to KeceiTe Payment Supra Protest. 300. Rights of Payer for Honor. Sec. SOO (171). Who may Make Payment for Honor. Where a bill has been protested for non-payment, any person may intervene and pay it supra protest for the honor of any person liable thereon or for the honor of the person for whose account it was drawn. Sec. 301 (172). Payment for Honor; How Made. The payment for honor supra protest in order to operate as such and not as a mere voluntary payment must be attested by a notarial act of honor which may be appended to the protest or form an ex- tension to it. Sec. 302 (173). Declaration before Payment for Honor. The notarial act of honor must be founded on a declaration made by the payer for honor or by his agent in that behalf declaring his intention to pay the bill for honor and for whose honor he pays. Sec. 303 (174). Preference of Parties Offering to Pay for Honor. Where two or more persons offer to pay a bill for the honor of different parties, the person whose payment wiU discharge most parties to the bill is to be given the preference. Sec. 304 (175). Effect on Subsequent Parties where Bill is Paid for Honor. Where a bill has been paid for honor all parties subsequent to the party for whose honor it is paid are discharged, but the payer for honor is subrogated for, and succeeds to, both the rights and duties of the holder as regards the party for whose honor he pays and all parties liable to the latter. 15 §i 171-177, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 190-196, Md.; §§ 179-185, R. I.; §§ 1681-28 to 1681-34, Wis. PAYMENT OF BILLS OF EXCHANGE FOE HONOR. 483 Sec. 305 (176). Where Holder Be/uses to Becevoe Payment Swpra Protest. Where the holder of a bill refuses to receive payment supra pro- test, he loses his right of recourse against any party who would have been discharged by such payment. Sec. 306 (177). Bights of Pay^ for Honor. The payer for honor on paying to the holder the amount of the bill and the notarial expenses incidental to its dishonor, is entitled to receive both the bill itself and the protest. '484 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XVI." BILLS IN A SET. •Section 310. Bills In Sets Constitute One Bill. 311. Riglits of Holders where Different Parts are Negotiated. 312. Liability of Holder who Indorses Two or More Parts of a Set to Different Persons. 313. Acceptance of Bills Drawn In Sets. 314. Payment by Acceptor of Bills Drawn In Sets. 315. Effect of Discharging One of a Set. •Sec. 310 (178). Bilk in Sets Constitute One Bill. Where a bill is drawn in a set, each part of the set being numbered :and containing a reference to the other parts, the whole of the parts •constitute one bill. :Sec. 311 (179). Rights of Holders where Different Parts are Negotiated. Where two or more parts of a set are negotiated to different hold- ■ers in due course, the holder whose title first accrues is as between such holders the true owner of the bill. But nothing in this section ■affects the rights of a person who in due course accepts or pays the part first presented to him. Sec. 312 (180). Linbility of Holder who Indorses Two or More Parts of a Set to Different Persons. Where the holder of a set indorses two or more parts to different persons he is liable on every such part, and every indorser subse- •quent to him is liable on the part he has himself indorsed, as if such parts were separate bills. Sec. 313 (181). Acceptance of Bills Drawn in Sets. The acceptance may be written on any part and it must be writ- Tten on one part only. If the drawee accepts more than one part, and such accepted parts are negotiated to different holders in due course, lie is liable on every such part as if it were a separate bill. Sec. 314 (182). Payment by Acceptor of Bills Drawn in Sets. When the acceptor of a bill drawn in a set pays it without re- <[uiring the part bearing his acceptance to be delivered up to him, 18 §§ 178-183, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, ya., and Wash.; §§ 197-202, Md.; §§ 186-191, R. I.; §§ 1681-85 to 1681-10, Wis. BILLS IN A SET. 485 and that part at maturity is outstanding in the hands of a holder in- due course, he is liable to the holder thereon. Sec. 315 (183). Effect of Discharging One of a Set. Except as herein otherwise provided, where any one part of a btU' drawn in a set is discharged by payment or otherwise the whole bill is discharged. [Note. The Wisconsin act here inserts an article, not found In the other acts, entitled "Damages on Bills," as follows: § 16S2. Whenever any bill of exchange drawn or indorsed within this state- and payable without the limits of the United States shall be duly protested' for non-acceptance or non-payment the party liable for the contents of sucbi bill shall, on due notice and demand thereof, pay the same at the current rate of exchange at the time of the demand and damages at the rate of five per cent, upon the contents thereof, together with interest on the said contents, to- be computed from the date of the protest; and said amount of contents, dam- ages and interest shall be in full of all damages, charges and expenses. § 1683. If any bill of exchange drawn upon any person or corporation out of ' this state, but within some state or territory of the United States, for the- payment of money shall be duly presented for acceptance or payment ana, protested for non-acceptance or non-payment the drawer or Indorser thereof,. due notice being given of such non-acceptance or non-payment, shall pay said; bill with legal interest according to its tenor and five per cent, damages, to- gether with costs and charges of protest.] 488 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XVII." PROMISSORY NOTES AND CHECKS. Section 320. Promissory Note Defined. 321. Cliedfc Defined. 322. Within what Time a Check Must be Presented. 323* Certification of Check; Effect of. 324. Effect where Holder of Check Procures it to be Oerttfled. 325. When Check Qxkarates as an Assignment. Sec. 320 (184). Promissory Note Denied, A negotiable promissory note within the meaning of this act is an unconditional promise in writing made by one person to another signed by the maker engaging to pay on demand or at a fixed or de- terminable future time, a sum certain in money to order or to bearer. Where a note is drawn to the maker's own order, it is not complete until indorsed by him. Sec. 321 C.185). Check Defined. A check is a bill of exchange drawn on a bank (a) payable on de- mand. Except as herein otherwise provided, the provisions of this act applicable to a bill of exchange payable on demand apply to a check. (a) See § 2 (191) "bank." Sec. 322 (186). Withm what Time a Check Must he Presented. A check must be presented for payment within a reasonable time (a) after its issue or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay. (a) See §4 (193). Sec. 323 (187). Certification of Check; Effect of. Where a check is certified by the bank on which it is drawn the certification is equivalent to an acceptance. Sec. 324 (188). Effect where the Holder of Check Procures it to he Certified. Where the holder of a check procures it to be accepted or certified the drawer and all indorsers are discharged from liability thereon. 17 §§ 184-189, Colo., Conn., D. C, Fla., Mass., N. C, N. D., Or., Tenn., Utah, Va., and Wash.; §§ 203-208, Md.; §S 192-197, R. I.; §§ 1684 to 1684r-5, Wis. PROMISSORY NOTES AND CHECKS, 487 Sec. 325 (189). When Check Operates as an Assignment. A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check. 488 THE NEGOTIABLE INSTRUMENTS LAW. ARTICLE XVIII." NOTES GIVEN FOR A PATENT RIGHT AND FOR A SPECULATIVE CONSIDERATION. Section 330. Negotiable Instruments Given for Patent Rights. 331. Negotiable Instruments Given for a Speculative Consideration. 332. How Negotiable Bonds are Made Non-Negotiable. Sec. 330. Negotiable Instrumerats Given for Patent Rights. A promissory note or other negotiable instrument, the consideration of which consists wholly or partly of the right to make, use or sell any invention claimed or represented by the vendor at the time of sale to be patented, must contain the words "given for a patent right" prominently and legibly written or printed on the face of such note or instrument above the signature thereto; and such note or instrument in the hands of any purchaser or holder is subject to the same de- fenses as in the hands of the original holder; but this section does not apply to a negotiable instrument given solely for the purchase price or the use of a patented article. See. 331. Negotiable Instruments for a Speculative Consideration. If the consideration of a promissory note or other negotiable instru- ment consists in whole or in part of the purchase price of any farm product, at a price greater by at least four times than the fair market value of the same product at the time, in the locality, or of the mem- bership and rights in an association, company or combination to pro- duce or sell any farm product at a fictitious rate, or of a contract or bond to purchase or sell any farm product at a price greater by four times than the market value of the same product at the time in the locality, the words, "given for a speculative consideration," or other words clearly showing the nature of the consideration, must be promi- nently and legibly written or printed on the face of such note or in- strument above the signature thereof; and such note or instrument, in the hands of any purchaser or holder, is subject to the same defenses as in the hands of the original owner or holder. 18 This article appears only in New York. KOTES FOR PATENT EIGHT AND SPECULATIVE CO.NSIDERATION. 489 Sec. 332. Horn Negotiable Bonds are Made Non-Negotiable. The owner or holder of any corporate or municipal bond or obliga- tion (except such as are designated to circulate as money, payable to bearer), heretofore or hereafter issued in and payable in this state, but not registered in pursuance of any state law, may make such bond or obligation, or the interest coupon accompanying the same, non-negotiable, by subscribing his name to a statement indorsed thereon, that such bond, obligation or coupon is his property; and thereon the principal sum therein mentioned is payable only to such owner or holder, or his legal representatives or assigns, unless such bond, obligation or coupon be transferred by indorsement in blank, or payable to bearer, or to order, with the addition of the assignor's place of residence. TABLE OF CASES CITED. [the figures refer to pages.] Abbott V. Hendricks, 193. V. Winchester, 304. Abel V. Alexander, 807. Adams T. Blethen, 109, 119. V. Cordis, 173. V. Darby. 866, 395. T. Jones, 137. v. King, 59, 60. v. Leland, 358, 399, 400. V. Robertson, 184. V. Wright, 390. Adansonia Co., In re, 66. JEtna Nat Bank v. Fourth Nat. Bank, 419. Agawam Bank v. Strever, 182. Agnew V. Bank of Gettysburg, 361. Agra &. Masterman's Bank t. Leigh- ton, 281. Akers v. Demond, 184r-186. Alabama Coal Min. Co. v. Brainard, 81. Alderson y. Langdale, 248, 250. Aldrich v. Jackson, 174. Aldridge v. Branch Bank, 287. Alexander v. Burchfleld, 414, 415. V. Strong. 33a r. Thomas, 32. 35. Alger T. Scott, 39. V. Thacher, 291. Allan V. Mawson, 58. Allen V. Brown. 12. v. Coffll, 113. T. Demlng, 286. V. Edmonson, 390. V. Edmundson, 383, 385. V. Rescous, 288. V. Suydam, 80, 341, 346. AUport T. Meek, 331. Almich v. Downey, 72, 73. Almy V. Winslow, 16, 31. NE6.BILLS Alves V. Hodgson, 185. American Bank v. Jenness, 347. American Exch. Bank v. Blanchard, 16. American Exch. Nat. Bank t. New York B. & P. Co., 314. American Nat. Bank v. Mfg. Co., 384, 395. American Trust & Savings Bank v. Gluck, 183. Ames V. Meriam, 207, 417. Ancher v. Bank of England, 126, 321. Ancona v. Marks, 213. Anderson v. Drake, 73, 354, 400. V. Hick, 98. V. Pearce, 80, 66. Anderton v. Beck, 349. V. Shoup, 66. Andrew v. Blachly, 75. Andrews v. Boyd, 402. V. Chadbourne, 328, 330. V. Franklin, 35. V. German Nat. Bank, 422, 423. V. Marrett, 808. V. Pond, 186. Angle V. Insurance Co., 246. Aniba v. Yeomans, 158. Annville Nat. Bank v. Kettering, 401. Anonymous, 3, 194, 297, 358. Anthony v. Harrison, 275, 282, 32& Appleby v. Biddolph, 34. Archibald v. Argall, 20. Armlstead v. Armistead, 366. Armour v. McMichael, 312. Armstrong, In re, 90, 97. V. Bank, 62. V. CaldweU, 366. V. Gibson, 243. V. Harshman, 139. Arnold v. Bryant, 142. V. ClifEord, 288. V. Dresser, 340, 364. (491) 492 CASES CITED. [The figures refer to pages.] Arnold V. Kock River V. U. R. Co., 49. V. Sprague, 7, 66, 74, 92. Arnot V. Pittston & E. Coal Co., 291. Artcher v. Whalen, 69. Artisans' Bank v. Backus, 374. Ashurst V. Royal Bank of Australia, 207. AtKins V. Jolinson, 288. Atkinson v. Hawdon, 255. V. Manks, 7, 75. Atlanta Mining & Rolling Mill Co. v. Gwyer, 239. Atlanta Nat. Bank v., Davis, 427. Atlanta Sav. Bank v. Spencer, 243. Atlantic Nat. Bank of New York v. Franklin, 316. Atlas Bank v. Doyle, 182, 316. Attenborough v. Mackenzie, 79, 296. Attorney General v. Continental Life Ins. Co., 419. Aubert v. Maze, 282. Auerbach v. Pritchett, 45. AuU Sav. Bank v. City of Lexington, 224. Aurey v. Fearnsides, 52. Auriol V. Thomas, 160. Austin V. Imus, 189. V. Munro, 64. Averett v. Booker, 7, 38, 75. Averill v. Wood, 81. Avery v. Stevrart, 76, 77, 350. Awde V. Dixon, 259. Ayer v. Tilden, 244. Aymar v. Beers, 341, 346, 347. V. Sheldon, 129, 344, 403. Ayres v. Campbell, 13. B Bachellor v. Priest, 299, 341, 361. Backhouse v. Harrison, 320. Backus V. Shipherd, 402. Bacon v. Burnham, 140. V. Dyer, 366. V. Fitch, 60. V. Harris, 180. Badgley v. Votrain, 136. Baer v. Leppert, 362. Bailey v. Armstrong, 112, V. Bank, 397. V. Bidwell, 284, 334. V. Dozier, 371. V. Heald, 189. Bainbridge v. Firmstone, 273. Baird v. Underwood, 33, Baker v. Dening, 55. Baldwin v. Bank, 133. V. Killlan, 283. V. Van Deusen, 168. Balfour v. Sea Fire Life Assur. Co.^ 272. Ball V. Allen, 58. V. Powers, 287. Ballard v. Greenbush, 295. V. Insurance Co., 248. Ballingalls v. Gloster, 157, 161, 342. Bank v. Godfrey, 223. V. Orvis, 353. Banker v. Banker, 229. Bank of Albion v. Smith, 115. Bank of Alexandria v. Mandeville,. 239. V. Swann, 76, 390, 391, 416. V. Young, 367. Bank of America v. Shaw, 389. Bank of British North America v. Merchants' Nat. Bank, 257. Bank of Burlington v. Raymond, 341.. Bank of Chenango v. Hyde, 181, 182, 315. Bank of Columbia v. Lawrence, 385- 388, 392. Bank of Commerce v. Bogy, 8. • V. Chambers, 389. V. Goos, 427. V. Union Bank, 55, 146, 148, 151,. 251. Bank of Cumberland v. Mayberry,. 286, 287. Bank of England v. Newman, 21, 206,. 363. V. Vagliano, 63, 431. Bank of Ft. Edward v. Washington, County Bank, 210. Bank of Genesee v. Bank, 67, 224, 225. Bank of Ireland v. Archer, 96, 100,. 101. V. Beresford, 179. Bank of Jamaica v. Jefferson, 134. Bank of Kentucky v. Wister, 206. Bank of Limestone v. Penlck, 252. Bank of Marietta v. Pindall, 106. Bank of Metropolis v. Breut, 355. V. New England Bank, 312. Bank of Michigan v. Ely, 99. V. Niles, 224. Bank of Missouri v. Wright, 48. Bank of New York v. Muskingum' Branch Bank of Ohio, 225. CASES CITED. 493 [The figures reler to pages.] Sank of New York v. Vanderhorst, 315. Bank of Old Dominion y. McVeigh, 373. Bank of Orleans v. Merrill, 31. V. Whittemore, 72, 358. Bank of Pittsburgh v. Neal, 259, 321. Bank of Republic v. Millard, 426. Bank of Rochester v. Gray, 161. Bank of Rutland v. Buck, 181, 315. T. Woodruff, 425. Bank of Salina v. Babcock, 310, 314. Bank of Sandusky v. Scoville, 810. Bank of Syracuse v. Holllster, 351, 356. Bank of United States v. Bank of Georgia, 148. V. Carneal, 378, 389. V. Corcoran, 385. V. Daniel, 20, 24, 408. V. Davis, 380. V. Goddard, 380, 382. V. Norwood, 386. V. Smith, 172, 359. V. United States, 171, 297, 299. V. Waggener, 237. Bank of Utica v. Bender, 385. V. Philips, 351. V. Smith, 351, 361, 379, 382. Bank of Washington v. Reynolds, 400. V. Triplett, 341, 350, 353. Barbor v. Boehm, 279. Barbour v. Fullerton, 347. Barclay v. Bailey, 352. V. Minchin, 24. Bardsley v. Delp, 315. Baring v. Clark, 155. Barker v. Bradley, 71. V. Casidy, 176. v. Hall, 386. v. Mechanics' Fire Ins. Co., 225. V. Parker, 77. V. Sterne, 259. Barlow v. Bishop, 221. V. Myers, 133. Barnes v. Vaughan, 354, 357, 363. Barnet v. Smith, 91. Barnett v. Juday, 56. V. OfEerman, 180. Barney v. Earle, 312. V. Newcomb, 80. v. Worthington, 99. Barough v. White, 172. Barret v. Evans, 386. Barrett v. Allen, 77, 350. Barrett v. May, 110. V. Wills, 357, 399. Barrick v. Austin, 6. Barriere v. Nalrac, 16. Barry v. Equitable Assur. Soc, 264 V. Morse, 115, 401. Bartlett v." Robinson, 389. V. Smith, 245. V. Tucker, 66. Bartrum v. Caddy, 295, 296. Bass V. Olive, 148. Bassenhorst v. Wilby, 41, 207. Bassett V. Avery, 327. Batavian Bank v. McDonald, 306. Bateman v. Joseph, 354. Bathe v. Taylor, 250. Batsford v. Every, 286. Battle V. Weems, 180, 212. Baxendale v. Bennett, 260, 303. Bay v.. Coddington, 313. Bayard v. Shunk, 279. Bayerque v. City of San Francisco, 37. Bayley v. Taber, 68, 235. Beach V. Bank, 183. V. Wise, 206. V. Zimmerman, 307. Beal V. City of Somerville, 125. Beale v. Parrish, 389. Beals V. See, 227, 231. Bearce v. Barstow, 237. Beard V. Root, 308. Beardesley v. Baldwin, 34. Beatty's Estate v. Western College, 36. Beck V. Robley, 298. V. Thompson, 350. Becker's Investment Agency v. Rea, 243. Beckwith, In re, 231. Bedell v. Carll, 206. Beecher v. Buckingham, 10. Beeching v. Gower, 356. Begbie v. Levi, 285. Behrens v. McKenzie, 228, 231, Belcher v. Smith, 109. Belden v. Hann, 113. V. Lamb, 241, 244. Belford v. Bangs, 129. Bell V. Alexander, 417. v. Bean, 316. V. Dagg, 168, 174. V. Hagerstown Bank, 387. V. Ingestre, 70. V. Mahin, 247. V. Packard, 188. Bellamy v. Majoribanks, 79. 494 CASES CITED. [The figures refer to pagei,] Bellasis v. Hester, 78, 103. Belmont Branch of State Bank v. Hoge, 320. Benedict v. Cowden, 123, 253. V. Miner, 250. V. Schmleg, 364, 387. Benjamin y. Tillman, 74. Bennett v. Farnell, 62. V. Smith, 243. Bennington y. Dinsmore, 59. Bennison y. Jewison, 245. Bentinck y. Dorrien, 88. Benton y. Martin, 70, 71, 123. Berkley y. Cannon, 233. Berkshire Bank y. Jones, 402. Berridge y. Fitzgerald, 389. Berry y. Robinson, 209. y. Southern Bank, 398. Besancon y. Shirley, 43. Bickerdike v. Bollman, 394. Bickford y. First Nat. Bank, 415. Bicknall y. Waterman, 21, 169. Bieroe y. Stocking, 194. Bigelow y. Colton^ 139, 206. y. Stilphen, 255. Bilderback v. Burllngame, 75. Billgerry y. Branch, 898. Billing y. Deyaux, 98. Billings y. Collins, 199. Bird y. Daggett, 183, 225. Birdsall y. Russell, 13, 321. Bishop y. Curtis, 198. y. Hayward, 135. y. Kowe, 21. Bissell y. Lewis, 100, 184. Bitzer y. Wagar, 205. Black y. CafEe, 144. y. Rldgway, 194, 281. y. Ward, 46. Blackburn, Ex parte, 20. Blackhan v. Doren, 396. Blackstone Bank y. Hill, 307. Blade y. Noland, 255, 302. Blair y. Bank of Tennessee, 356, 366. y. Wilson, 404, 408, 416. Blake y. McMillen, 364. Blakemore y. Wood, 329. Blakeslee y. Hewett, 141. Blanchard y. Steyens, 312. Blanckenhagen y. Blundell, 60. Blandin y. Wade, 339. Blatchford y. Melliken, 113. Blenn v. Lyford, 183, 296. Blesard y. Hirst, 158. Blethen v. Loyering, 164, Bliss y. Matteson, 288. Block V. Bell, 30, 57, 58. Blodgett y. Durgin, 187. Blont y. Proctor, 293. Bloss y. Bloomer, 288. Blossom y. GriflBn, 71. Boalt V. Brown, 251. Boardman y. Spooner, 5& Bock V. Lauman, 241. Bodley y. Higgins, 69. Boehm y. Garcias, 82. Bogy y. Keil, 395. Bolton y. Dugdale, 52. Bonar y. Mitchell, 371. Bond y. Farnham, 397. V. Fltzpatrick, 207. Bonner y. Nelson, 267. Bookstaver v. Jayne, 71, 123. Booth V. Powers, 248, 255. y. Robinson, 223, 224. Borden y. Clerk, 121. Born V. First Nat. Bank, 423. Borough y. Perkins, 370. Bossange y. Ross, 241. Bottum y. Scott, 275, 328. Boulton y. Welsh, 376, 378. Bowen y. Bryne, 245. y. Newell, 187, 350, 406, 409. V. Stoddard, 173. Bower y. Hastings, 180, 212. Bowling y. Harrison, 386, 387, 416. Bowman y. McChesney, 40. Bowyer y. Bampton, 164, 194, 195, 234, 235. Boyce y. Edwards, 100. y. Smith, 230. Boyd y. City Say. Bank, 384, 386. y. Cleveland, 401, 402. V. Corbltt, 125, 215. y. Emmerson, 425. Boynton y. Page, 285. V. Pierce, 113, 142. Bradlaugh y. De Rin, 188. Bradley y. Dayis, 385. y. Delaplalne, 406. Brady y. Chandler, 30. Bragg y. Danielson, 302. Braham v. Bubb, 34. Brailsford y. Williams, 379. Braithwaite y. Gardiner, 149, Braman y. Hess, 175. Brandt y. Mickle, 367. Bray y. Hadwen, 392. Brayley y. Kelly, 55. Breck y. Cole, 288, 329. CASES CITED. [Tbe flEures refer to pages,] 495 Breckinridge v. Ralls, 43. Brennehan v. Purniss, 114. Brenzer v. Wightman, 391. Brewer v. Boynton, 135. Brewster v. Dana, 113. V. McCardell, 72. V- Shrader, 317, 431. Breyfogle v. Beckley, 172. Bridgeford v. Mfg. Co., 339. Bridgeport Bank v. Welcll, 312. Bridges v. Berry, 368. V. Winters, 247. Brigg V. Hilton, 280. Briggs V. Boyd, 182. V. Dorr, 202. V. Latliam, 109, 188. V. Merrill, 324. V. Partridge, 67. Brigham v. Fayerweather, 227, V. Marean, 213. Briglit V. Furrier, 342. Brill V. Tuttle, 8, 38, 39. Brimhall v. Van Campen, 287. Brind v. Hampshire, 137. Brindley v. Barr, 387. Bringham v. Lighley, 281. Bristol V. Warner, 7, 274. Bristow V. Sequeville, 185, Britton v. Dierker, 249. V. Hall, 211. Bromage v. Lloyd, 69, 137. Bromwich v. Lloyd, 4. Brook V. Hook, 256. T. Teague, 112. Brooklyn C. & N. R. Co. v. National Bank, 311. Brookman v. Millbank, 333. Brooks V. Elkins, 30. V. Hargreaves, 35, 51. V. Higby, 356. V. Mitchell, 209, 345, 348. Brower v. Fisher, 230. Brown, In re, 406, 409. V. Butchers' & Drovers' Bank, 55, lOS, 407. V. Callaway, 316. V. Cronise, 369. V. Curtiss, 110. V. Davies, 207. V. Donnell, ,226. V. Ferguson, 373, 391, 392. V. Harraden, 350. y. Jodrell, 227. V. Jones, 84, 251, 359, V. Jordhal, 25. Brown v. Leavitt, 310, 315. V. Leckie, 423. V. Lusk, 406. V. MafCey, 395. V. Mott, 175, 179, 211. V. Reed, 254. V. St. Charles, 71. V. Taber, 181. V. Turner, 362, 364. Browne v. Joddrell, 231. Browning v. Klnnear, 354. Bruce v. Wright, 123. Brush V. Scribner, 312, 315. Bruyn v. Russell, 275. Bryant v. Eastman, 201. V. Faries, 130. V. Lord, 401. V. Merchants' Bank, 401. V. Pember, 281. Buchanan v. Hubbard, 219. Buckley v. Briggs, 224. V. Hann, 137. V. Jackson, 322. Buckner v. Finley, 416. Bull V. Bank, 45, 406, 408, 413, 415, 417. V. Rice, 237. V. Sims, 145. Bullard v. Randall, 79, 409, 419. Buller V. Crips, 3, 197. Bullock V. Taylor, 52. Burbridge v. Manners, 296. Burchell v. Slocock, 6. Burchfield v. Moore, 246, 250, 253. Burgess v. Merrill, 218. V. Northern Bank, 256. V. Pollock, 230. Burke v. Allen, 231. V. Dulaney, 71. V. McKay, 24, 371, 418, Burmester v. Barron, 389. Burnap v. Cook, 114, 118. Burnes v. Scott, 193. Burnham v. Webster, 402. Burns V. Rowland, 315. Burr V. Smith, 300. Burrill v. Smith, 165- Burritt v. Tidmarsh, 367. Burrough v. Moss, 208. Burrows v. Klunk, 246, 254. Burson v. Huntington, 68, 268. Burtnett v. Gwynne, 12. Burton v. Stewart, 280. Bussard v. Levering, 77, 350, 388. Butler V. Paine, 44. 496 CASES CITED. [The figures refer to pages.] Buxton V. Jones, 161, 355. B. & W. Beeman v. Duck, 331. Cabbott V. Eadford, 245. Cabot Bank v. Morton, 170. V. Warner, 387. Cady V. Bradshaw, 402. V. Shepard, 141. Caister v. Eccles, 10. Calder v. Billington, 203. Callahan v. Bank, 384. Callanan v. Edwards, 197. Callott V. Haigh, 307. Callow V. Lawrence, 298. Camden v. McKoy, 113, 141. Camden Bank v. Hall, 247. Came v. Brlgham, 224. Camidge v. Allenby, 279, 366. Cammer v. Harrison, 344. Campbell v. French, 76, 344. V. Pettenglll, 85. V. Sloan, 240. V. Weister, 43. V. Wilcox, 245. Campbell Printing Press & Mfg. Co. V. Jones, 172. Canadian Bank of Commerce v. Coumbe, 150. Canajoharie Nat. Bank v. Diefendorf, 320, 334. Canal Bank v. Bank of Albany, 148, 257,' 331. Cannan v. Bryce, 293. Canon v. Grigsby, 247. Cape Ann Nat. Bank v. Burns, 254. Capp V. Lancaster, 344. Capron v. Capron, 36. Cardwell v. Hicks, 316. V. Martin, 242. Carew v. Duckworth, 396. Carll V. Brown, 347. Carlon v. Kenealy, 41, 42. Carlos V. Pancourt, 37. Carnegie v. Morrison, 97. Carnwright v. Gray, 6, 74, 274, 275. Carolina Nat. Bank v. Wallace, 385, 387. Carpenter v. Greenop, 207. V. Snelling, 245. Uarrick v. Vickery, 202. Carrier v. Cameron, 334. Carroll v. Weld, 142. Carrollton Bank v. Tayleur, 99. Carruthers v. West, 176, 180. Carter v. Bank, 370, 403. V. Beckwith, 229. V. Bradley, 376. V. Burley, 370, 39J. 392. V. Downish, 3. V. Flower, 395. V. Moulton, 71. - V. Smith, 359. Oartwright v. Williams, 137. Carver v. Hayes, 74. Carvick v. Vickery, 133. Cary v. Bancroft, 13. V. White, 308. Casborne v. Dutton, 29. Casco Nat. Bank v. Clark, 67. V. Shaw, 388. Case V. Burt, 103. V. Hall, 20. V. Henderson, 419. V. Mechanics' Banking Ass'n, 332. Cash V. Kennion, 48. Cashman v. Harrison, 157. Cassel V. Dows, 97. Castrique v. Buttigieg, 157. Cathell V. Goodwin, 396. Catlin V. Gunter, 68. Caulkins v. Pry, 234. V. Whisler, 260. Caunt V. Thompson, 374, 394. Cayuga Bank v. Bennett, 383. V. Warden, 129, 376, 377, 384. Cayuga Co. Bank v. Hunt, 351, 364. Cazet V. Field, 235, 285, 287. C. C. Thompson & Walkup Co. v. Appleby, 384. Cecil V. Hicks, 172. Central Bank v. Allen, 358, 400. V. Davis, 113, 401. V. Hammett, 320, 324. Central Nat. Bank v. Railroad Co., 25. Central Trust Co. v. Bank, 109, 133, 203. Chadwick v. Allen, 59. Chaffe V. Ludeling, 245. Chaffee v. Jones, 56. Challlss V. McCrum, 120, 168. Chalmers v. Lanion, 210, 326. Chamberlyn v. Delarlve, 365. Chambers v. Union Bank, 117. Champion v. Gordon, 406. Chandler v. Temple, 70. Chanoine v. Fowler, 379. Chapin v. Dobson, 71. CASES CITED. [The figures refer to pages.] 497 Chapman v. Black, 243. V. Cottrell, 69. V. Keane, 380, 382. V. Kellogg, 304. V. Rose, 265. V. White, ra, 419. Chappel V. Brockway, 290. Chappelear v. Martin, 297. Chappell V. Bissell, 70, 136. V. Spencer, 253. Charles v. Marsden, 150, 179, 180, 211. Ohartiers & Robinson Turnpike Co. V. McNamara, 245. Chase v. Hathorn, 164. Chaters v. Bell, 369. Chatham Bank v. Allison, 403. Cheek v. Roper, 357, 363. Cheever v. Railroad Co., 322. Chemical Electric Light & Power Co. V. Howard, 793. Chemung Canal Bank v. Bradner, 183. Chenault v. Bush, 279. Chester v. Dorr, 179, 180, 212. Chicago Railway Equipment Co. v. Bank, 42. Chick V. Pillsbury, 391. Chicopee Bank v. Philadelphia Bank, 356. Childs V. Monins, 65. Chillicothe Branch of State Bank v. Fox, 67, 366. Chipman v. Foster, 67. V. Tucker, 68, 71. Cholmeley v. Darley, 123, 253. Chouteau v. Webster, 388, 389. Chrysler v. Renois, 43, 314, 315. Church V. Barlow, 177, 380. V. Clapp, 209. v. Howard, 252. Citizens' Nat. Bank v. Brown, 44. V. Cade, 388. V. PioUet, 32, 35. T. Richmond, 246, 251. Citizens' Nat. Bank of Dayenport v. Importers' & Traders' Bank, 257. City Bank t. Barnard, 285. V. Cutter, 77. City of Aurora v. West, 235. City of Lexington v. Butler, 206. City of Muscatine v. Sterneman, 245. Claflin V. Boorum, 182, 243. V. Lenheim, 321. Clanin v. Machine Co., 71. Clark T. Blackstock, 252. NEG.BILLS.— 32 Clark V. Callison, 203. V. King, 11, 45. V. Manufacturing Co., 25. V. Mundal, 20, 21. V. Pease, 194, 270, 334. V. Phillips, 214. V. Sisson, 182. V. Tanner, 265. V. Whitaker, 203. Clarke v. Dunham, 228. V. Johnson, 268. V. Patrick, 115. V. Percival, 38, 52. V. School Dist., 224. Clason V. Bailey, 56. V. Morris, 305, 306. Clayton v. Gosling, 74. Clerk V. Martin, 4. Cleveland & M. R. Co. v. Himrod Fur nace Co., 223. Clift V. Rodger, 332. Cline V. Guthrie, 68. Clinton Nat. Bank v. Graves, 287." Olode V. Bayley, 380. Cloflin V. Boorum, 239. Clough V. Davis, 287. Clute V. Small, 255. Glutton V. Attenborough, 63. Cobb V. Doyle, 312. Cock V. Fellows, 133, 201. Cockle V. Flack, 239. Coddington v. Davis, 402. Coffin v. Loring, 75. Coggill V. American Exch. Bank, 164, 256, 331. Cohea v. Hunt, 351. Cohen v. Hale, 428. Colburn v. Averill, 142. Cole V. Bank, 132. v. Gushing, 114. V. Sackett, 20. V. Saulpaugh, 181, 182. Colehan v. Cooke. 35. Coleman v. Biedman, 213. V. Sayer, 348. Collamer v. Langdon, 21. Collier v. Nevill, 175. Collins V. Butler, 354. v. Denning, 344. V. Gilbert, 12, 333. V. Lincoln, 43. V. Locke, 291. V. Martin, 330. Collott V. Haigh, 158. Colms V. Bank, 350. 498 CASES CITED. [Tlie figures refer to pages.] Colorado Nat. Bank v. Boettcher, 94, 419. Colson V. Arnot, 117, 255. Colt V. Barnard, 208. Commercial Bank v. Armstrong, 125. V. Hamer, 351. V. Varnum, 24, 370, 371. Commercial Bank of BufCalo v. War- ren, 247. Commercial & Farmers' Nat. Bank v. E^irst Nat. Bank, 421. Commissioners of Iredell Co. v. Was- son, 115. Commissioners of Marion Co. v. Clark, 327. Commonwealth v. Butterick, 61, 108. V. Ray, 407. Comstock V. Hannah, 321. V. Hier, 313. Condit V. Baldwin, 237. Condon v. Pearce, 164. Conklin v. Gandall, 332. •V. Vail, 312. Connelly v. McKean, 103. Connor v. Martin, 221. Conover v. Earl, 132. Conrad v. Kinzie, 286. Continental Life Ins. Co. T. Barber, 308. Continental Nat. Bank v. M. Corn- hauser & Co., 422. V. Townsend, 315. Cook V. Darling, 350. V. Lister, 183, 296. V. Litchfield, 375. V. Moffat, 188. V. Norwood, 195. V. Satterlee, 48. V. Wright, 272. Cooke V. State Nat. Bank, 421. V. United States, 268. Coolidge V. Payson, 96. V. Ruggles, 11, 35. Cooper V. Dedrick, 132. V. Earl of Waldegrave, 189. V. Meyer, 148, 331. Corbett v. Clark, 40. V. State, 35. Corcoran v. Powers, 241. V. White, 80. Cordier v. Thompson, 70. Corney v. Da Costa, 394, 397. Corning v. Pond, 2-13. Cory V. Scott, 395. Costelo V. Crowell, 51. Coster V. Thomason, 383. Cota V. Buck, 36. Cotes V. Davis, 202. Couch V. Meeker, 71. V. Waring, 305. Coulter V. Richmond, 141. Coward v. Hughes, 273. Cowie V. Halsall, 250. V. Stirling, 60. Cowing V. Altman, 68, 72. Cowles V. Harts, 378. V. McVickar, 175. Cox V. Bank," 80, 357, 359. T. Boone, 415. V. Coleman, 93. V. Hodge, 296. V. Reinhardt, 76. V. Troy, 89. Coy V. Stiner, 55. Coye V. Palmer, 244. Craft V. Fleming, 120. Cram v. Hendricks, 172, 175, 239, 248, 244. Crandall v. Schroeppel, 339. V. Vickery, 325. Crane v. Price, 243. Cranson v. Goss, 287. Crawford v. Bank, 189, 249, 405. Craythorne v. Swinburne, 306. Creamer v. Perry, 397. Creveling v. Bloomsbury Nat. Bank, 419. Crider v. Shelby, 35. Crim V. Starkweather, 345. Crippen v. Culver, 228. Crist V. ,Crist, 198. Crocker v. Getchell, 115. Cromw-ell v. Arrott, 345. V. County of Sac, 172, 317. V. Hewitt, 8, 14, 142. Cronise v. Kellogg, 179. Crook v. Jadis, 320, 351. Crosby v. Grant, 321. V. Roub, 196. Crosman v. Feller, 71. Crosse v. Smith, 373. Crossley v. Ham, 207. Crossmore v. Page, 41. Crouch V. Credit Poncier of England, 16, 197. Crowley v. Barry, 364. Cruchley v. Clarance, 60, 258. Cruchly v. Mann, 258. Cruger v. Armstrong, 329. Culver v. Bigelow, 239, CASES CITElD. [Tlie figures refer to pages.] 499 Culver V. Robinson, 46. Cumber v. Wane, 21. Cummings v. Boyd, 194. V. Kent, 401. V. Thompson, 334. V. Williams, 238. Cundy v. Marriott, 355. Currie v. Misa, 270, 312. Currier v. Lockwood, 29, 31. Curtis V. Leavitt, 224. V. Sprague, 114; V. State Bank, 38T. Cusliing V. Gore, 408. Cushman v. Haynes, 52. Ciissen V. Brandt, 300. Cutler V. Welcli, 293. Cuyler v. Stevens, 129, 373, 384. Dabney v. Stidger, 383. Dacosta v. Davis, 184. Daggett V. Daggett, 16. V. Whiting, 181. Dale V. Gear, 113. Dalrymple v. Hillenbrand, 165, 331. Dana v. Boston Third Nat. Bank, 419. V. Savsryer, 352. Dane v. Kirkvcall, 231. Daniels v. Wilson, 317. Dann v. Norris, 137. Darbishire v. Parker, 390, 391. Darnell v. Williams, 281. Darrow v. Walker, 273. Darwin v. Rippey, 252. , David V. Bank, 265. Davidson v. Cooper, 247. Davis V. Brown, 120. V. Clarke, 58, 87. V. French, 65. V. Garr, 61. V. Gowen, 387. V. Graham, 307. V. Jones, 72. V. McCready, 282. V. Miller, 211. V. Morgan, 115. V. Randall, 177. Davis Sewing Mach. Co. v. Best, 268. Davren v. White, 230. Dawkes v. Lord De Lorane, 37, 38. Dawson v. Goodyear, 180. v. McCarty, 245. Day V. Lyon, 113. Day V. Pool, 280. V. Saunders, 314. V. Thompson, 115. Dayton v. Moore, 238. V. Trull, 365. Dean v. Carruth, 6, 70, 74. V. Hall, 112. Deberry v. Darnell, 47. De Forest v. Frary, 35. V. Strong, 239. De La Chaumette v. Bank, 186, 205. Delano v. Bartlett, 275. Delaware, L. & W. R. Go. v. Gilbert, 65. Demond v. Burnham, 72. De Mott V. Starkey, 325. Den V. Clark, 229. V. Wright, 247. Dennett v. Goodwin, 50. Dennie v. Walker, 357, 400. Dennis v. Morrice, 394. Denniston v. Bacon, 181. Dennistoun v. Stewart, 369, 370, 416. Depau V. Humphreys, 185. De Pauw v. Bank of Salem, 107. Des Arts v. Leggett, 339. Desha v. Stewart, 79. De Silva v. Fuller, 297. Desilver's Estate, In re, 227. Detrick v. McGlone, 281. Deuters v. Townsend, 207. De Wald's Estate, 34. Dewey v. Reed, 251. De Witt V. Walton, 67. De Wolf V. Johnson, 241. V. Murray, 161, 377. Dexter v. Hall, 227. Diamond Match Co. v. Roeber, 291. Dick V. Leverich, 257. Dickins v. Beal, 24, 371, 396, 408. Dickinson v. Hall, 280. Dill V. White, 56. Dinsmore v. Duncan, 258. District of Columbia v. Cornell, 303., Dix V. Van Wyck, 240. Dixon V. Dixon, 312, 315. V. Nuttall, 41, 344. D. M. Osborne & Co. v. Hubbard, 25. Dobree v. Eastwood, 382, 387, 393. Dod V. Edwards, 302. Dodge V. Bank, 391, 426. V. Emerson, 52 Dodson V. Taylor, 383. Dole V. Gold, 376, 378. Donnelly v. Howie, 896. 5Q0 CASES CIT^D. IThe figures refer to pages.] Doolittle V. Ferry, 115. Doremus v. Bond, 281. Dorman v. Dlbdin, 172. Doi'sey v. Wolff, 51. Doubleday v. Kress, 134, 297, 299, 361. Dougal V. Cowles, 20. Dougherty v. Deeney, 300. Douglass V. Matting, 265, 268. V. Wilkeson, 59, 131, 132. Downes v. Church, 25. Downey v. Hicks, 20. Downing v. Backenstoes, 1. Downs V. Collins, 65. Dows V. Kidder, 326. Drake v. Rogers, 72, 287. Draper v. Clemens, 339, 357, 363. Dresser v. Missouri & I. Ry. Const. Co., Ill, 326. Drum T. Drum, 247. Drummond v. Drummond, 58. Dry Dock Bank v. American Life In- surance & Trust Co., 237. Dubois V. Mason, llO, 139. Dubose V. Wheddon, 220. Dubuys V. Parmer, 76. Dudley v. Wells, 245. Dudman v. Earl, 118. Duel V. Spence, 182. Dufaur v. Oxenden, 90. Dull V. Bricker, 81, 100. Dumont v. Williamson, 120, 168. Dunavan v. Plynn, 89, 94. Duncan v. Berlin, 79. V. Gilbert, 182, 316. V. Institution, 76, 287. V. McCullough, 357, 367. V. Morrison, 195. V. Scott, 270, 332, 333. Dunham v. Clogg, 258. V. Dey, 237. Dunlop V. Gregory, 275, 291. Dunn V. Weston, 181, 182, 211. Dunnent v. Tuttle, 281. Dunning v. Heller, 106. Dunscomb v. Bunker, 184. Duran v. Ayer, 172. Durant v. Banta, 172. Durgin v. Bartol, 17. V. Ireland, 12. Durham v. Manrow, 136. Durkin v. Cranston, 25. Dutchess Co. Mut. Ins. Co. v. Hach- ficld, 323. Duvall V. Bank, 397. Dwight V. Pease, 133. Dykers v. Leather Manufacturers' Bank, 408. Eadie v. Slimmon, 269. Eads V. City of Carondelet, 80. Eagle Bank t. Chapin, 391. V. Hathaway, 387. Eaglechilde's Case, 2. Eales V. Dicker, 329. Eames v. Crosier, 202, 209. Earl V. Peck, 70, 277. Earle v. Reed, 220. East V. Smith, 381. Easter t. Minard, 235. Easterly v. Barber, 135. Eastman v. Plumer, 297, 300. V. Shaw, 68, 71. Easton v. Pratchett, 193, 278. East River Bank v. Butterworth, 21. Eastwood V. Kenyon, 273. Eaton V. Alger, 215, 238. V. Aspinwall, 226. Bberhart v. Page, 141. Eckert v. Pickel, 248. Eckhert v. Ellis, 212. Ecton V. Halan, 12. Edgar V. Boies, 45. V. Chute, 3. Edge V. Bumford, 203. Edgerly v. Shaw, 219. Edgerton v. Edgerton, 7. Edie v. East India Co., 117, 125, 127, 129, 201. Edis V. Bury, 58. Edmonds v. Gates, 377. Edmunds v. Groves, 194. Edney v.. Willis, 208. Edson V. Puller, 100. Edwards v. Davenport, 227. V. Dick, 164. Ehrichs v. De Mill, 8, 38, 39. Elford V. Teed, 351. Elgin City Banking Co. v. Zelch, 109. Eliason v. Henshaw, 80. Elliot v. Ince, 227, 231. V. Miller, 100. V. Wood, 240. Ellis V. Bank, 403. V. Brown, 134. V. Mason, 30. Ellison V. Colllngridge, 28, 30. V. Jackson Water Co., 81. i;asbs cited. [■me figures reter to pages.] 501 Ellsworth V. Brewer, 114, 329. Elsam V. Denny, 295. Elting V. BrincherhofC, 3il. Ely V. Clute, 56. V. James, 21. Emery v. Bartlett, 275. Bmly V. Lye„, 206. Bmmett v. Tottenham, 213. English V. Darley, 306. Epler V. Funk, 322. Ernst T. Crosby, 293. V. Steckman, 36. Erwln V. Adams, 358, 399. V. Downs, 165. V. Lynn, 113. Espy v. Bank of Cincinnati, 117, 421, 425. Essex Co. Nat. Bank v. Bank of Mon- treal, 423. Estahrook v. Smith, 202. Bstes V. Shoe Co., 417. Etheridge v. Gallagher, 193, 210. V. Ladd, 339. Evans v. Anderson, 184. V. Cramlington, 126. V. Foreman, 248. V. Gee, 106, 113, 342. V. Kymer, 181, 814. V. Williamson, 280. Everard v. Wilson, 377. Everson v. Carpenter, 219 Evertson v. Bank, 13, 16. Exchange Bank v. Hubbard, 184. V. Rice, 98. Exchange Nat. Bank v. Bank of Lit- tle Rock, 246, 254. Exeter Bank v. Gordon, 342. Faikney v. Reynous, 294. Fairchild v. Railroad Co., 50, 59, 145. Fairland v. Percy, 65. Fairley v. Roch, 154. Fales V. Russell, 339. Fall River Nat. Bank v. Walton, 339. Fanning v. Consequa, 186. Fant V. Miller, 185. Farmers' Bank v. Duvall, 357, 391. 7. Gunnell, 399. V. Noxon, 181. Farmers' Bank of Kentucky v. Ewing, 401. Farmers' & Citizens' Bank v. Noxon, 264, '326, 334. Farmers' & M. Bank v. Battle, 386. V. Butchers' & Drovers' Bank, 225, 421. Farmers' & Merchants' Ins. Co. v. Needles, 226. V. Joslyn, 240. Farnam v. Brooks, 230. Farnsworth v. Allen, 352. Farnum v. Brooks, 230. V. Fowle, 77. Farr v. Ricker, 115. Farrington v. Frankford Bank, 314.. Farwell v. Curtis, 415. V. Trust Co., 401. Fassin v. Hubbard, 109, 121, 383. Faulder v. Silk, 229. Favor v. Fhilbrick, 293. Fawsett V. National Life Ins. Co., IC. Fay V. Guynon, 10. V. Smith, 251. Feariug v. Clark, 71, 267. Federick v. Winans, 137. Fenn v. Harrison, 108, 206. Fenton v. Robinson, 265. Fentum v. Pocock, 307. Ferguson v. Davis, 85. Fernandez v. Lewis, 347. Ferner v. Williams, 359. Fernon v. Farmer, 16. Ferris v. Bond, 56, 59. V. Brush, 269. Fetters v. JIuncie Nat. Bank, 180. Field V. Nickerson, 345, 347. Fielden v. Lahens, 322. Fielding & Co. v. Corry, 380. Findlay v. tiall, 172. Firman v. Blood, 142. First Nat. Bank v. Bank, 415. V. Fricke, 248. V. Gish, 419. V. Grant, 180. V. Green, 264, 333, 334. V. Grindstaff, 235. V. Hall, 67, 133. V. Harris, 417. V. Larsen, 51. V. Leach, 422^24. y. McMichael, 425. V. Mfg. Co., 259. V. Miller, 415. V. Needham, 417, V. Payne, 139. 502 CASES CITED. [The figures refer to pages.J First Nat. Bank v. Price, 41, 344. V. Ryerson, 373. V. Skeen, 36. V. Slaughter, 51. V. Slette, 48, 53. Y. Sollenberger, 12. V. Whitman, 409, 419, 423, 426. First State Sav. Banli v. Webster, 258. Firth V. Broolis, 415. V. Thrush, 379. Fish V. First Nat. Banli of Detroit, 164. V. French, 207. Fisher v. Beckwith, 339. V. Fisher, 312. V. Leland, 210, 318. V. Leslie, 29, 31. V. Pomfret, 59. V. Samuda, 280. V. Sharpe, 280. Fitch V. McDowell, 178. Fitchburg Bank v. Greenwood, 120. V. Perley, 392. Fitchburg Ins. Co. v. Davis, 378. Fitzhugh V. Wilcox, 228. Fletcher v. Chase, 280. V. Pierson, 417. V. Thompson, 48. Fleury v. Tufts, 33. Flint V. Flint, 132. V. Rogers, 351. Florence Min. Co. v. Brown, 421. Florida Cent. R. Co. v. Schutte, 317. Fobes V. Cantfleld, 239. Foden v. Sharp, 80, 356. Fogarties v. State Bank, 418. Folger V. Chase, 108, 133. Follett V. Moore, 48. Folsom V. Bartlett, 209. Foote V. Emerson, 237. Forbes v. Omaha Nat. Bank, 386. Ford V. Angelrodt, 83. li'orman v. Wright, 282. Forward v. Thompson, 31. Foster V. Dawber, 302. V. Julien,'399, 400. V. Mackinnon, 265, 266. V. Shattuck, 62. Fourth Nat. Bank v. City Nat. Bank of Grand Rapids, 418. V. Heuschen, 364, 383. Fourth St. Nat. Bank v. Yardley, 419. Fowler v. Brantly, 322. V. Bush. 21. V. Strickland, 178. Fraker v. Little, 257. Fralick v. Norton, 51. Francia v. Joseph, 312. Frank v. Lanier, 168, 257. V. Lillienfeld, 258. Franklin v. March, 30, 74, 275. V. Twogood, 8. Franklin Bank v. Freeman,' 407. V. Raymond, 361. Frazer v. D'Invilliers, 120. Frazier v. Massey, 220. V. Trow's Printing & Bookbind- ing Co., 72. Freakley v. Fox,' 303. Free v. Hawkins, 401. Freeman v. Boynton, 339, 354, 361. V. Ellison, 68. V. Perry, 133. Freeman's Bank v. Perkins, 391. V. Rollins, 308. V. Ruckman, 137, 186. Freese v. Brownell, 186, 188. Freiberg v. Cody, 415. French v. Bank of Columbia, 395. V. Grindle, 244. V. Jarvis, 213. V. Turner, 108. Freund v. Bank, 89, 134, 202, 423. Friedlander v. Texas & P. Ry. Co., 18. Friend v. Wilkinson, 388. Frost V. Inhabitants of Belmont, 289. Fry V. Fry, 269. V. Hill, 346, 347. V. Reusseau, 43. Fugure v. iSutual Soc. of St. Joseph, 81. Fuller V. Dame, 289. V. McDonald, 401. FuUerton v. Bank of U. S., 339, 391. V. Hill, 109. V. Rundlett, 401. V. Sturges, 258. Funk V. Babbitt, 58. Furman v. Haskin, 345. Furze V. Sharwood, 378, 379. Fydell v. Clark, 206. Gage V. Kendall, 214. Galbraith v. Fullerton, 307. Gale V. Kemper, 355. V. Miller, 68. V. Walsh, 158, 369, 370. CASES CITED. [The figures refer to pages.] 503 Gallagher v. Roberts, 20. V. White, 133. Gallery v. Prindle, 3T. Gamble v. Grimes, 281. Gammon v. Schmoll, 85. Gantt V. Mackenzie, 160. Garden v. Maynard, 296. Gardner v. Gardner, 269. V. Maxey, 290. T. Maynard, 295, 298. V.Walsh, 252. V. Watson, 307. Garland, Ex parte, 64. Garner v. Pite, 71. Garnett v. McKewan, 428. V. Woodcock, 351, 390. Garrard v. Haddan, 268. Garvin v. Wiswell, 12. Gascoyne v. Smith, 345, 346. Gates V. Beecher, 357, 364. Gay V. Rainey, 188. V. Rooke, 29. Gayoso Sav. Inst. v. Fellows, 196. Gazzam v. Armstrong, 155, 301. Geary v. Physic, 55, 108. Geib T. Reynolds, 20. Geill V. Jeremy, 391. General South American Co., In re,~ 173. Genesee Bank v. Patchln Bank, 225. George v. Surrey, 55. Georgia Nat. Bank v. Henderson, 406. Germ'an v. Ritchie, 173. Germania Bank v. Distler, 72, 329. Gettysburg Nat. Bank v. Chlsolm, 246. Gibb V. Mather, 359. Gibbs V. Cannon, 399. V. Fremont, 189. V. Linabury, 266. Gibson v. Cooke, 419. V. Minet, 16, 33, 59. V. Smith, 82. V. Tobey, 21. Giffert v. West, 168. Gifford V. Hardell, 415. Gilbert v. Dennis, 373, 376, 378, 384. Gill V. Cubit, 320. V. Palmer, 374. Gillespie v. Hannahan, 358. Gillett V. Averill, 355. Gillham v. Bank, 113. Gillilan v. Myers, 51. Gilmore v. Hirst, 52. Gilson V. Stevens Mfg. Co., 195. Girard Bank v. Bank of PenD Tp., 422. Gist v. Lybrand, 386, 387, 400. Gladwell v. Turner, 391. Glasgow V. Pratte, 384. Glenn v. Farmers' Bank, 235. Glicksman v. Earley, 374. Glidden v. Chamberlin, 165. Gloucester Bank v. Worcester, 307. Goddard v. Merchants' Bank, 148, 158, 257, 331. Godfrey v. Crayeraft, 172. Goggerly v. Cuthbert, 314. Goldman v. Davis, 401. Gompertz v. Bartlett, 174. Good V. Martin, 142. Goodall V. Dolly, 341. Goodell V. Harrington, 232, Gooding v. Morgan, 21. V. Underwood, 85. Goodloe V. Taylor, 36. Goodman v. Eastman, 251. V. Harvey, 320. V. Simonds, 820, 321. Goodnow V. Warren, 383. Goodrich v. Gordon, 97. V. Reynolds, 224. Goodsell V. Myers, 219. Goodwin v. Conklin, 314. V. Goodwin, 51. V. Robarts, 2, 15, 17. Goodyear v. Watson, 303, 306. Gordon v. Anderson, 59. V. Price, 20. V. Wansey, 295. Gore V. Gibson, 232, 233. Gorham v. Keyes, 289. Gorman v. Ketchum, 108. Goshen Nat.. Bank v. Bingham, 1jj6, 203. Goshen & M. Turnpike Road v. Hur- tin, 42. Gould V. Armstrong, 285. V. Mortimer, 112. V. Segee, 268. Goupy V. Harden, 365. Gowan v. Jackson, 897. Gower v. Moore, 364, 400. Gracie v. Sandford, 366. Graff V. Logue, 71. Grafton Bank v. Cox, 358. Graham v. Maguire, 165. T. Sangston, 376. Grandin v. Le Roy, 182. 504 CASES CITED. [The figures refer to pages.] Grange v. Reigh, 415. Grant v. Da Costa, 74. V. Bllicott, 150, 179, 211. V. Healey, 47, 173. V. Hunt, 98. V. Shaw, 81. ■ V. Vaughan, 3, 60, 111, 197, 205, 206. V. Wood, 85. Graves v. American Bxch. Bank, 117, 255, 257. V. Johnson, 293. Gray v. Bank of Kentucky, 181, 333. V. Bowden, 29, 59. V. Hook, 289. V. Johnston, 427. V. Milner, 58, 87. V. Wood, 72, 214. V. Worden, 43. Greathead v. Walton, 287. Greele v. Parker, 96. Green v. Cummins, 369. V. GoingS, 330. V. Holway, 245. V. Skeel, 66, 67. V. Wilkie, 265. Greenawalt v. McDowell, 308. Greenfield Bank v. Crafts, 247. V. Stowell, 246, 254, 258. Greening v. Patten, 300. Greenough v. Smead, 113. Greenwell v. Haydon, 210. Gregg V. Beane, 415. Greusel v. Hubbard, 135. Greve v. Schweitzer, 297. Grey v. Cooper, 195, 220. Gridley v. Bane, 264. V. Capen, 110. Griener v. XJlerey, 226. Grlerson v. Mason, 71. GriflSn v. GofC, 76. V. Ranney, 245. V. Weatherby, 37. Griffith V. Reed, 178. V. Wells, 235. Griggs V. Howe, 258. Grimes t. Hillenbrand, 235, 285. V. Piersol, 213. Grimshaw v. Bender, 24. Grinman v. Walker, 385, 387. Grinnell v. Baxter, 16. Grist V. Backhouse, 66. Griswold v. Davis, 70. Grocers' Bank v. Penfield. 182, 264, 315. Grosvenor v. Stone, 396. Groth v. Gyger, 364. Grover v. Grover, 278. Groves v. Sentell, 56. Grugeon v. Smith, 377. Grutacap v. Woullnise, 53. Guernsey v. Burns, 213. V. Rexford, 239. Gulick V. Ward, 289. Gumz V. Giegling, 142. Gunnis v. Weigey, 305. Gushee v. Eddy, 45. Gwinnell v. Herbert, 129, 143. H HaJne's Adm'rs v. Tarrant, 220. Hale V. Rice, 302. Haley v. Congdon, 208. Halifax v. Lyle, 149. Halifax Union v. Wheelwright, 254. Hall V. Auburn Turnpike Co., 226. V. Cordell, 184. V. Earnest, 241. T. Farmer, 2. V. Puller, 251. V. Haggart, 238. V. Newcomb, 141. V. Steel, 94. V. Toby, 40, 109. V. Wilson, 241, 268. Halliday v. McDougall, 24, 370. Halloran v. Whitcomb, 10. Halstead v. Skelton, 359. Haly V. Lane, 165. Hamer v. Sidway, 277. Hamilton v. Le Grange, 239. V. Lumber Co., 415. V. Newcastle & D.' R. R., 224. V. Spottiswoode, 28. Hammett v. Barnard, 281. Hammond v. Dufrene, 396. Hanauer v. Doane, 293. Hance v. Miller, 113. Hankey v. Trotman, 348. Hannahs v. Sheldon, 231. Hannum v. Richardson, 120, 164, 168, 287. Hansard v. Robinson, 338, 339. Hansberger v. Gelger, 307. Harbert v. Dumont, 307. Harbord v. Cooper, 133. Hardy v. Merriweather, 224. V. Waters, 134. CASES CITED. [The figures refer to pages.] 505 Hare v. Henty, 415. Hai'ger v. Wilsou, 317. T. Worrall, 150, 182, 333, 334. Harker v. Anderson, 329, 406, 416. Harmer v. Steele, 296. Harp V. Kenner, 400. Harrell v. Broxton, 209. Harrington v. Lee, 280. Harris v. Berger, 268. T. Brisco, 289. v.. Clarli, 278. V. Paciier, 355. Harrisburg Trust Co. v. Shufeldt, 366. Harrison v. Banli, 406. V. McClelland, 65. V. Ruscoe, 375, 381. Harrod v. Myers, 219. Harrop v. Fisher, 118, 134. Hart V. Smith, 75, 344. Hartford Banii v. Barry, 76,. 362. y. Stedman, 362, 385, 387, 391. Hartley v. Case, 378. V. Wilkinson, 34, 123, 253. Hartwell v, McBeth, 214. Harvey v. Archibold, 185. V. Bank, 415. V. Cane, 57, 81. V. Martin, 94, 95. V. Smith, 253. V. Towers, 284, 334. Harwood v. Jones, 13. Hasbrook V. Palmer, 43. Hascall v. Life Ass'n, 87. V. Whitmore, 180, 327. Hasey v. White Pigeon Beet-Sugar Co., 16. Haskell v. Boardman, 397. V. Mitchell, 203. V. Whitmore, 210. Haskett v. Flint, 81. Hastings v. Dollarhide, 220. V. Thompson, 53. Hatch V. Searles, 259. T. Trayes, 74. Hately v. Pike, 139. Hawkins v. Bone, 232. V. Cardy, 131. V. Watkins, 43. Hawley v. Sloo, 189. Haxtun v. Bishop, 213. Hayden v. Weldon, 132. Hayes v. Caulfield, 264. Hayling v. Mullhall, 298. Haynes v. Rudd, 289. Hays V. Hathorn, 2l4, 215. v. Kingston, 209. Hayword v. Stearns, 210. Heard v. Dubuque Co. Bank, 50. Heartt v. Rhodes, 413, 415. Heath, Ex parte, 395. V. Blake, 248. V. Van Cott, 139. Hebden v. Hartsink, 366. Hedger v. Steavenson, 377. Hedges v. Sealy, 134, 201, 203. Heenan v. Nash, 80. Hegeler v. Comstock, 53. * Hegeman v. Moon, 29. Heidelback, Ex parte, 189. Heiser v. Hatch, 257. Heman v. Francisco, 59. Henderson v. Henderson, 302. V. Palmer, 289. Hendricks v. Franklin, 189. V. Judah, 330. V. Thornton, 60. Henry v. Conley, 20. V. Jones, 76. V. Lee, 351. Henry Christian Building & Loan Ass'n V. Walton, 256. Henshaw v. Root, 413. Herdic v. Roessler, 184. Hereth v. Meyer, 49. Herrick v. Baldwin, 400. V. Bennett, 41. V. Carman, 140. V. Whitney, 168. V. Woolverton, 345. Herring v. Woodhull, 108. Heuertematte v. Morris, 149, 150, 283. Heylyn v. Adamson, 158, 342. Heywood t. Pickering, 415. Hibernia Nat. Bank v. Lacombe, 162. Hickerson v. Raiguel, 314. Hickman v. Ryan, 391. Hicks V. Marshall, 232. Hidden v. Bishop, 181. Higgins V. Bullock, 137. Highmore v. Primrose, 74, Hill V. Anderson, 219. V. Bostick, 308. V. Cooley, 250. V. Lewis, 4, 16, 106. V. Northrup, 235, 285. V. Wilson, 273. Hills V. Place, 359, 366, 367. Hillsdale College v. Thomas, 68. Hilton V. Houghton, 287. 506 CASES CITED. [The figures refer to pages.] Hilton V. Shepherd, 382. V. Smith, 182. Hinckley v. Railroad Co., 210, 33a. Hine v. Allely, 161, 354. Hirsch v. Trainer, 231. Hirschfeld v. Smith, 403. Hirshfield y. Ft. Worth Nat. Bank, 77. Hitchcock V. Buchanan. 67.' V. Galveston, 224. Hoare v. Cazenove, 153, 156. Hobbs V. Straine, 385. Hobson V. Stevenson, 11. «Hodge V. Fillis, 353. Hodges V. Adams, 117. V. Holland, 214. V. Hunt, 219. V. Nash, 1T7. V. Shuler, 49, 375, 376. V. Steward,-^ 176, 197, 202. Hodgkins v. Moulton, 194. Hoffman v. Bank, 145, 147, 148, 283. V. Foster, 180, 212. Hogan V. Moore, 270. Hogarth v. Latham, 183. Hoge V. Lansing, 326. Hogue V. Williamson, 48. Holbrook v. Payne, 94. V. Vibbard, 129. Holcomb V. Wyckoff, 317. Holden v. Rattan Co., 333. V. Trust Co., 172. Holdsworth v. Hunter, 25. Holeman v. Hobson, 241. HoUiday v. Atkinson, 193, 278. HoUingsworth v. Moulton, 215. Holloway v. Quinn, 135. Holman v. Creagmiles, 281. V. Johnson, 294. Holmes v. Bank, 242. V. Jaques, 61. V. Kerrison, 344. V. Kidd, 209. V. Roe, 415. V. Trumper, 252. Holt V. Ross, 117, 151, 152. Holton V. McOormick, 115. Holtz V. Boppe, 357. Home Ins. Co. v. Green, 375. Homes v. Smyth, 312. Hook V. Pratt, 125, 126, 136. Hooper v. Williams, 61. Hoover v. McCormick, 402. Hopkins v. Detwiler, 20. Hopkinson v. Forster, 408, 419. Hopkirk V. Page, 396. Hopper, In re, 229. Hopps V. Savage, 57, 88. Horn V. Newton City Bank, 246. Home V. Rouquette, 403. Horton v. Coggs, 3, Hortsman v. Henshavsr, 149, 151, 256. Hosstatter v. Wilson, 50. Hough V. Loring, 94. Housatonic Bank v. Laflin, 374. House V. Adams, 341. V. Bank, 384. Housego V. Cowne, 373, 383, 385. Houston V. Bruner, 142. Hovey v. Chase, 230. V. Hobson, 227, 228. V. Sebring, 213. Howard v. Ames, 207. V. Duncan, 256. V. Ives, 380, 392, 393. V. Simpkins, 219. Howard Banking Co. v. Welchmaa, 326. Howell V. Medler, 13. Howe Mach. Co. v. Hadden, 298. Howes V. Austin, 329, 413. Hoxie V. Kennedy, 215. Hoyt V. Lynch, 28. V. Seeley, 413. Hubbard v. Bank, 184. V. Matthews, 383. V. Moseley, 51. V. Rankin, 265. Hubbell V. Flint, 293. Huff V. Wagner, 316, 317. Hughes V. Jones, 229. V. Kiddell, 131. V. Nelson, 203. Huguenim v. Baseley, 269. Hull V. Myers, 183, 397. Humphreys v. Guillow, 247. Hunt V. Adams, 110. V. Gray, 247, 248, 255. V. Massey, 219. v. Standart, 187. Hunter v. Jeffery, 62. V. Wood, 172. Huntington v. Ballon, 247. V. Bank, 259. Husband v. Epling, 35. Huse V. Hamblin, 44. Hussey v. Winslow, 30. Huston V. Young, 265. Hutchins v. Hebbard, 71. V. McCann, 172. Hyde v. Goodnow, 184, 186. CASES CITED. [The figures refer to pages.] 607 Hyde v. Paige, 66. Hyne v. Dewdney, 29. I Ilsley V. Jones, 80, 174. Imperial Land Co., In re, 25, Imperial Loan Co. t. Stone, 228. Importers' & Traders' Nat. Bank v. Littell, 175. V. Shaw, 389. Ingalls V. Lee, 106, 164, 172, 244. Ingersoll v. Long, 187. Ingham v. Primrose, 303. V. Vaden, 814. Ingram v. Porster, 103. Iowa College v. Hill, 324. Ireland v. Kip, 386, 387. Irish V. Cutter, 132. Iron City Nat. Bank v. McCord, 82. Irvine v. Lowry, 43. Irving Nat. Bank v. Alley, 63. Iselin V. Rowlands, 215. Isnard v. Jones, 253. Israel v. Gale, 179. Ives V. Bank, 258. Ivory V. Michael, 252. J Jackson v. First Nat. Bank, 182. V, Haskell, 114. V. Henry, 240. V. Hudson, 86. V. Johnson, 247. V. King, 280. V. Myers, 25. V. Packer, 366. V. Pigott, 83. V. Richards, 390. V. Travis, 242. V. Warwick, 178. Jacobs V. Hart, 249. Jacobs Pharmacy Co. v. Trust Co., 183. Jacquim v. Warren, 30. Jaffray v. Brown, 141. Jagger v. Bank, 373, 381. James v. Chalmers,. 206, 329, 381. V. Wade, 398. Jameson v. Swinton, 882, 390. Janson v. Thomas, 345. Jarvis t. Mfg. Co., 892. Jarvis v. Wilkins, 84, 38. V. Wilson, 80, 149. Jefferies v. Austin, 192, 281. Jeffries v. Lamb, 282. Jenkins v. Jenkins, 219. V. Tongue, 213. Jenners v. Howard, 232. Jenney v. Herle, 37. Jennings v. Roberts, 381. Jennison v. Parker, 369. v. Stafford, 74. Jenys v. Fawler, 194. Jerome v. Bigelow, 288. V, Wliitney, 45. Jeune v. Ward, 94. Jewett V. Cook, 12. John V. City Nat. Bank, 387. Johnson v. Bank of Pulton, 173. V. Brown, 388. V. Collings, 92, 96, 100, 101. V. Frisbie, 53. V. Haight, 852, 36T. V. Heagan, 253. V. Mangum, 202. V. Medlicott, 233. V. ilitchell, 114, 118. V. Stone, 231. V. Titus, 280. V. Way, 111, 318, 321. Johnston Harvester Co. v. Clark, 51, 52. Jones V. Bank, 97. V. Berryhill, 179. V. Broadhurst, 298. V. Carter, 11. , V. Deyer, 278. V. Pales, 43. V. Port, 314. V. Gordon, 334. V. Lees, 291. V. Lewis, 386. V. Radatz, 51. V. Savage, 365, 368. V. Shaw, 71. v. Shawhan, 20. V. Simpson, 52. Jordan v. Tate, 36. V. Wheeler, 343. Joseph V. Bigelow, 329. Joslyn V. Eastman, 305. Josselyn v. Ames, 114. V. Lacier, 7, 38, 75. Judah V. Harris, 44. Judd V. Seaver, 172. Judson V. Corcoran, 11, 508 CASES CITED, [The figures refer to pages.] Judson V. Gookwin, 16, 110. Juilliard v. Chaffee, 71. Juniata Bank v. Hale, 364, 373, 899. Jury V. Barker, 38. Justh V. National Bank of Common- wealth, 264. K Kamm v. Holland, 141. Kasson v. Smith, 181. Kearney v. King, 24. Kearslake v. Morgan, 366. Keene t. Beard, 408-410, 419. V. Weeks, 248. Keith V. Jones, 44. Kelley v. Hemmingway, 34. Kellogg V. Curtis, 334. V. Fancher, 315. V. Schaake, 210. Kelly V. Burroughs, 135, 177. V. Solari, 166. Kendall v. Robertson, 235. Kennedy v. Crandell, 255. V. Geddes, 100, 392. V Goodman, 192., Kent V. Walton, 239. Kenworthy v. Sawyer, 165. ■ Ketchum v. Barber, 237, 239. Keteltas v. Myers, 70, 136. Key V. Flint, 181. Keyes v. Fenstermaker, 345. Kidder v. Horribin, 329. Ivieffer v. Ehler, 318. Kilgore v. Dempsey, 185. Kilpatrick v. Heaton, 109. Kimball v. Huntington, 1, 6, 29, 74. King V. Bickley, 379. V. Box, 61. V. Crowell, 339, 352. V. EUor, 28. V. Fleming, 287. V. Hurley, 376. Kingsbury v. Wall, 51. Kings Co. El. R. Co., In re, 226. King's Estate, In re, 194. Kingsland v. Koeppp, 107, 142. Kingston v. Long, 34. Kingston Bank v. Bltinge, 257. Kinne v. Ford, 69. V. Johnson, 269. Kinsley v. Robinson, 394. Kinyon v. Stanton, 413. V. Wohlford, 268. Kinzie v. Farmers' & Mechanics' Bank,. 68. Kirk V. Dodge Co. M. Ins. Co., 50. Kirkman v. Bank of America, 69. Kirkpatrick v. Puryear, 413. Kiskadden t. Allen, 36. Kitchel V. Schenck, 178, 238. Kitchen v. Loudenback, 317. V. Place, 268. Kleeman v. Frisble, 197. Klein v. Keyes, 193. Kling v. Kehoe, 115. Knight V. Hunt, 178. V. Jones, 61. Knights V. Putnam, 240, 242, 243. Knisely v. Sampson, 72. Knox V. Clifford, 287. Knoxville Nat. Bank v. Clark, 254. Koch V. Howell, 94. Kohler v. Montgomery, 352. Kohn V. Egg Co., 143. Konig V. Bayard, 102. Kreiss v. Seligman, 294. Kuhl V. Press Co., 235. Kulenkamp v. GrofE, 194. Kuntz V. Temple, 77, 350. Kyle V. Thompson, 136. Kyne v. Erskine, 300. Labouchere t. Tupper, 65. Laclede Bank v. Schuler, 421. La Coste v. De Armas, 213. La Due v. Bank, 345. Lafayette Ins. Co. v. Rogers, 136. Laflin v. Sherman, 213. Laing v. Stone, 172. Laird v. State, 44. Lake Shore Nat. Bank v. Colliery Co.,. 383. Lambert, Ex parte, 154, 301. V. Ghiselin, 399. L'Amoureaux v. Crosby, 229, 230. Lancaster v. Baltzell, 255. Lancaster Bank v. Woodward, 417. Lancaster Co. Bank v. Moore, 229. Lancaster Nat. Bank v. Taylor, 203, Lancey v. Clark, 178, 300. Lane v. Krekle, 62, V. Smith, 197. y. Stewart, 401. Langenberger v. Kroeger, 362. CASES CITED. [The figures refer to pages.] 5oy Langston v. Comey, 93. Langton v. Lazarus, 249. Lank v. Morrison, 142. Larkin v. Hardenbroo^, 302. La Hose v. Logansport Nat. Bank, 110. Larsen v. Breene, 423. Latham t. Smith, 245. La Touche v. La Touche, 272. Law V. Parnell, 213. Lawrence v. American Nat. Bank, 257. V. Bassett, 188. 7. Clark, 314. V. Dougherty, 45. V. Miller, 379. V. Willis, 230. Lawson v. Fai-mers' Bank, 166, 392. V. Lovejoy, 219. V. Weston, 321. Laxton v. Peat, 306. Lay V. Wissman, 317, 326. Lazarus v. Cowie, 183, 296. Lazier v. Horan, 359, 366. Leach v. Hewitt, 395. Leather Cloth Co. v. Lorsont, 291. Leavitt V. Putnam, 117, 127, 129, 201, 207, 209. y. Simes, 352. Lebel V. Tucker, 188. Leeaan v. Kirkman, 143. Ledwich v. McKim, 260. Lee V. Balcom, 30. V. Green, 20. V. Murdoch, 250. V. Selleck, 403. y. Starbird, 251. y. Swift, 6. y. Wilcocks, 47, 173. Leeds y. Lancashire, 123, 253. Leftley y. Mills, 361. Legge y. Thorpe, 396. Leggett y. Cooper, 280. y. Jones, 53. Legro y. Staples, 52. Lehman y. Jones, 357, 399. Leiber y. Goodrich, 43. Leland y. Farnham, .330. Le Neye y. Le Neye, 217, 318. Lenheim y. Fay, 112. Lennig v. Ralston, 24, 188, 189, 333. Lennon v. Grauer, 165. Lenox y. Leyerett, 153. y. Roberts, 76, 390. Leonard y. Gary, 402. v. Mason, 49. Leonard v. Olson, 346. y. Vredenburg, 110. Leslie v. Hastings, 88, 90. y. Lorillard, 291. Lester v. Given, 409, 415, 417, 418. Lett y. Morris, 8. Levy y. Gadsby, 243. Lewis y. Berry, 39. V. Clay, 266, 431. y. Cosgraye, 280. V. Davisson, 20. y. Gompertz, 376. V. Hathman, 134. y. Hodgdon, 214. y. Kramer, 250. y. Lady Parker, 330. V. Payn, 247. V. Head, 230. Libby v. Mikelborg, 41. Lightbody y. Bank, 279. Lincoln y. Buckmaster, 231. V. Stevens, 178. Linden y. Rokes, 278. Lindenberger v. Beall, 390. Linderman v. Guldin, 383. Lindley v. Hofman, 265. Lindsay v. Price, 113. Lindsey v. McClelland, 345. Lindus v. Bradwell, 81. Lisle y. Rogers, 250. Lithgow V. Lyon, 172. Littauer v. Goldman, 168, 169. Littell y. Herd, 175. Little V. O'Brien, 213. y. Phenix Bank, 408, 411, 413. y. Slackford, 27. Littlefleld v. Bank, 197. Livingston v. Hastie, 175. Lloyd y. Sigourney, 125, 126, 322. Lobdell V. Baker, 168. Lockwood V. Crawford, 376. Lodge y. Phelps, 197. V. Spooner, 173. Logan V. Attix, 20. Lomax v. Picot, 120. London & C. Bank v. Groome, 417. London & S. Bank v. Wentworth, 81. Long V. Moore, 250. Loomis V. Pulver, 345. y. Ruck, 269. Lord v. Bank, 182. Loriug y. Chase, 245. Losee V. Dunkin, 209, 347. Louisiana State Bank v. Rowel, 385. 510 CASES CITED. [The figures refer to pages.] Louisville Banking Co. v. Gray, 50. Louisville, E. & St. L. R. Co. v. Cald- well, 7. Lovejoy v. Whipple, 287. Lovell V. Bvertson, 213. V. Hill, 38. Lovett V. Cornwell, 417. Lowe V. Bliss, 53. V. Waller, 195, 242, 243. Lowery v. Steward, 8. Lowes V. Mazzaredo, 243. Lowry v. Steele, 401. Lowy V. Andreas, 16. Loyd V. McCaffrey, 419. Lubbering v. Kohlbrecher, 247. Lucas v. James, 55. V. Ladew, 342. V. Pitney, 224. Luce V. Shoff, 76. Luckey v. Pepper, 344. Luff V. Pope, 27. Lugrue v. Woodruff, 98. Lumley' v. Palmer, 92. Lunt V. Adams, 351. Luxe V. Pompe, 171. Lynn v. Bell, 408. Lyon V. Marshall, 60. v. Mitchell, 289. Lyon, Potter & Co. v. Bank, 142, 203, 204. Lyons v. Divelbis, 109. Lysaght V. Bryant, 382. M Macarthur v. FuUarton, 35. McCaffrey v. Dustin, 207. McCall V. Taylor, 56. McCamant v. Miners' Trust Co. Bank, 128. McCaskill v. Connecticut Sav. Bank, 27. McClain v. Davis, 231. V. Weidemeyer, 196. McClane v. Fitch, 403. McCrillis v. How, 218. McCulloch V. Hoffman, 193. McCune v. Belt, 374. McDoal V. Yeomans, 132. McDonald v. Hodge, 45. V. Muscatine Nat. Bank, 268. McDowell V. Cook, 301. McEvers v. Mason, 96. McGehee v. Posey, 45. McGinn v. Holmes, 20. McGinnis v. Com., 229. McGrade v. German Sav. Inst., 418. McGrath v. Clark, 251, 254. McGruder v. Bank of Washington, 358, 399, 400. McGuire v. Bidwell, 20. Mclntire v. Preston, 224. Macintosh v. Haydon, 250. V. Lytle, 59. McKay's Estate v. Bank, 185. McKenzie v. British Linen Co., 256. Mackey v. Peterson, 265. McKinnell v. Robinson, 293. Mackintosh v. Eliot Nat. Bank, 147. McKleroy v. Southern Bank of Ken- tucky, 147. McKnight v. Knisely, 312, 315. V. Wheeler, 164. McKyring v. Bull, 330. McLaren v. Hall, 20. McLaughlin, In re, 228. V. McGovern, 165. McLean v. Clydesdale Banking Co., 408, 428. Macleed v. Snee, 39, 40. McLemore v. Powell, 307. McLeod V. Hunter, 41. McMinn v. Richmonds, 218. McMullen v. Rafferty, 8, 14. McMurchy v. Robinson, 76. McNamee v. McNamee, 286. McNeilage v. Holloway, 221. Macomb v. Wilkinson, 194. Macomber v. Dunham, 172. McShaiTan v. Neeley, 72. McWilliam v. Webb, 10. Madison Square Bank v. Pierce, 298. Magee v. Badger, 320, 321. Magruder v. Union Bank, 355, 364, 367, 400. Maine Ti-ust & Banking Co. v. Butler, 109. Maitland v. Citizens' Nat. Bank, 316. Mammon v. Hartman, 141. Manchester Bank v. Fellows, 385. Mandeville v. Newton, 124, 168. V. Riddle, 3. V. Welch, 8, 79. Mangles v. Dixon, 197. Mann v. Moors, 389. Manners, Ex parte, 245. Manning v. Kohn, 173. V. McClure, 312. Manrow v. Durham, 110. CASES CITED. [The figures refer to pages.] 511 Manwaring v. Harrison, 3-18. Marine Nat. Bank v. National City Bank, 251, 257, 421. Marion & M. R. E. v. Hodge, 145. Market & Fulton Nat. Bank v. Sar- gent, 258. Markey v. Corey, 109. Marr v. Johnson, 382. * Marsh v. Marshall, 210. Marshall v. Baltimore & O. R. Co., 289. V. Clary, 85. V. Marshall, 209. V. Rockwood, 70, 186. Marston v. Allen, 136, 137. Martendale v. FoUett, 252, 255. Martin v. Chauntry, 48. V. Franklin, 173. V. Mayo, 219. V. Winslow, 345. Marvin v. McCuUum, 68. Marvine v. Hymers, 224. Marzetti v. Williams, 427, 428. Mason v. Donsay, 92, 98, 1S4, 425 V. Franklin, 161, 342, 353. V. Lord, 241. V. Mason, 176i V. Morgan, 202. V. Noonan, 330. Maspero v. Pedesclaux, 383. Massachusetts Bank v. Oliver, 383. Massey v. Paola Bldg. & Sav. Ass'n, 226 Master v. Miller, 246, 249. Masters v. Ibberson, 327. Mateme v. Horwitz, 288. Mathews v. Alkin, 306. Matteson v. Ellsworth, 248, i255. V. Moulton, 95. Matthews v. Bloxsome, 130. V. Haydon, 363. V. Houghton, 45. Matthiessen v. McMahon, 228. Mattison v. Marks, 31, 36. Maule V. Crawford, 6, 16. Mauran v. Lamb, 206, 214, 299. Maux Ferry Gravel Road Co. v. Bran- egan, 397. Maxwell v. Vansant, 113. May V. Campbell, 242. V. Chapman, 319, 327. V. Coffin, 130. V. Hewitt, 67. V. Kelly, 87. V. Miller, 56. Mayberry v. Morris, 315. Mayer v. Heidelbath, 314. Meaeher v. Fort, 164, 256. Mead v. Engs, 382, 391. V. Keeler, 224. V. Small, 402. V. Young, 117, 255. Meadow v. Bird, 312. Meads v. Merchants' Bank, 421, 422. Mechanics' Bank v. Merchants' Bank, 75, 354. V. Straiton, 16, 59, 62, 330. Mechanics' Banking Ass'n v. New York & S. W. L. Co., 225. Mechanics' & F. Bank v. Wixson, 315i Mechanics' & Traders' Bank v. Bar- nett, 316. Mechanics' & Traders' Ins. Co. v. Coons, 416. Mechanics' & Traders' Nat. Bank v. Crow, 333. Meeker v. Shanks, 68. Megginson v. Harper, 60. Mehlberg v. Tisher, 275. Mellersh v. Rippen, 375. Mellish V. Rawdon, 343, 365. V. Simeon, 160, 173. Meltzer v. Doll, 272. Mendez v. Carreroon, 299. Mercantile Bank v. Cox, 100. Mercer v. Lancaster, 388. Mercer Co. v. Hacket, 206. Merchants' Bank v. Birch, 883. V. Elderkin, 356. V. Spicer, 55, 362, 413. V. State Bank, 421. Merchants' Loan & Trust Co. v. Clair, 215. Merchants' Nat. Bank v. Eagle Nat. Bank, 147. V. State Nat. Bank, 408, 409, 415, 421. Merchants' & Mechanics' Bank v. Hewett, 11. Meridian Nat. Bank v. Gallaudet, 168. Merrick v. Boury, 20. Merritt v. Benton, 173. V. Cole, 299. V. Earle, 286. V. Todd, 346. V. Woodbury, 373, 384. Mersman v. Werges, 246. Jlertens v. Winnington, 154, 301, Messenger v. Southey, 374. 512 J CASES CITED. [The figures refer to pages.] Metcalfe v. Richarclson, 384. Metropolitan Nat. Bank of Chicago v. Jones, 422. Meyer v. HibsUer, 177, 178, 356-358. V. Huncke, 255. V. Huneke, 248. V. Richards, 164, 169. ' Meyers v. Phillips, 33. Michigan Bank v. Eldred, 258. Michigan Ins. Bank v. Eldred, 1. Michigan Ins. Co. v. Leavenworth, 68. Miers v. Brown, 374, 379. Miles V. Lingerman, 219. Milford V. Mayer, 342. Aliller V. Austen, 81. V. Biddle, 6, 42. V. Crayton, 322. V.' Excelsior Stone Co., 51. V. Finley, 234, 321. V. Gilleland, 250. V. Hackley, 161, 371, 388. V. Hull, 243. V. Larned, 195. V. Neihaus, 92. V. Poage, 36. V. Race, 111, 206. V. Talcott, 211, 326. V. Thomson, 145. V. Tiffany, 185. V. Wood, 282. V. Zeimer, 243. Millis V. Barber, 182, 194. Mills V. Bank of United States, 374, 377, 416. V. Mills, 289. Milne v. Graham, 197. Milton's Case, 3. Miner v. Paris Bxch. Bank, 239. Minet v. Gibson, 62, 380. Mining Co. v. Anglo-Callfornian Bank, 224. Minor V. Bewick, 134. Minot V. Russ, 409, 423, 424. Minturn v. Fisher, 406. Miser v. Trovinger, 183, 395. Mishler v. Reed, 296. Mitchel V. De Grand, 341, 352. Mitchell V. Baring, 357. V. Cross, 391. V. Culver, 72, 258, 259, 268. V. Fuller, 114, 118. V. Reynolds, 290. V. Rome R. Co., 226. Mix V. National Bank of Bloomington, 315. Mobile Bank v. Brown, 44, Mobley v. Clark, 394. V. Ryan, 330. Mohawk Bank v. Corey, 180, 182. Moiese v. Knapp, 57. Molina, Ex parte, 376, 884, 390. Molton V. Camroux, 227, 231. Money v. Ricketts, 209. Monroe v. HofiC, 20. Montague v. Perkins, 259. Montelius v. Charles, 343. Montgomery v. Crossthwait, 253. v. Elliott, 359. V. Tutt, 359. Montross v. Clark, 178, 179. Monument Nat. Bank v. Globe Works, 225. Moody V. Threkeld, 60. Moore v. Clopton, 184. V. Coffield, 399. V. Cross, 136, 141, 17a V. Hershey, 227, 229. V. McClure, 66. V. Maple, 213. V. Moore, 324. V. Ryder, 314. V. Waitt, 357. V. Warren, 348. Moorman v. State Bank, 376. Moran v. Commissioners of Miami Co., 206. Mordecai v. Dawkins, 293. More V. Manning, 117, 127, 201. Morehead v. Parkersburg Nat. Bank, 250. Morford v. Davis, 164. Morgan v. Bank of Louisville, 898. V. Fallenstein, 281. V. Reintzel, 298. V. Reinzel, 339. V. United States, 209, 345. V. Van Ingen, 371, 382. V. WoodWorth, 382. Morley v. Culverwell, 297, 302. ilornyer v. Cooper, 327. Morris v. Husson, 389. V. Lee, 30. V. Poillon, 189, 196. Morrison v. Bailey, 27, 406. Morris Run Coal Co. v. Barclay Coai Co., 290. Morrow V. Brown, 281. Morse v. Chamberlin, 388. V. Massachusetts Nat. Bank, 409, 425. CASES CITED. [The figures refer to pages.] 513 Morse Twist Drill & Mach. Co. v. Morse, 291. Morton v. Naylor, 8, 37. V. Steward, 218. V. Tliurber, 238. T. Westcott,'388. Moses T. Bank, 61, 110, 416, 419. V. Ela, 397. V. Trice, 339. Mosher v. Carpenter, 164. Moss V. Averell, 224. V. Harpeth Academy, 224. V. Oakley, 224. Mott T. Havana Nat. Bank, 49. V. Hicks, 66, 120, 224. Moiile v. Brown, 415. Mt. Mansfield Hotel Co. v. Bailey, 130. Moxon V. Pulling, 106. Muilman v. D'Eguino, 341, 343, 347, 348. Muir V. Crawford, 308. Mulherrin v. Hannum, 366. Muller v. Pondir, 203. Mullick V. Radakissen, 341, 346, 408. Munger v. Shannon, 7, 37. Munn V. Baldwin, 388, 389. V. Burch, 418. V. Commission Co., 172, 175, 224, 244. Munroe v. Easton, 367. Murdock v. Mills, 97. Murphy v. Collins, 285. V. Keyes, 194. V. Lippe, 280. Murray v. Beckwith, 195. T. East India Co., 307. V. Oudah, 168, 413. V. Lardner, 321, 323. Muse V. Dantzler, 25. Musselman v. Oakes, 60. Mussey v. Eagle Bank, 421, 422. Musson V. Lake, 129, 338, 368. Mustard v. Wohlford's Heirs, 219. Mutual Life Ins. Co. v. Hunt, 231. Mutual Nat. Bank v. Rotge, 423, 424. N Nagle V. Homer, 85. T. Lyman, 99. Nailor v. Bowie, 339. Nance v. Lary, 260. Nash V. Brown, 182. V. Towne, 60. NEG.BILLS.— 33 Nason v. BarfE, 94. Nassau Bank v. Jones, 224. National Bank v. Green, 172, 244. V. Kirby, 334, 335. V. Law, 322. V. Millard, 419. V. Texas, 208. V. Young. 183. National Bank of America v. Indiana Banking Co., 418. National Bank of Commerce v. Atkin- son, 225. V. Galland, 110. National Bank of Commonwealth y. Law, 110. National Bank of North America v. Bangs, 147. National Bank of Oxford v. Kirk, 290. National City Bank of Brooklyn v. Westcott, 125. National Commercial Bank v. Miller, 125, 419, 421, 423. National Exch. Bank v. Veneman, 265. National Mahaiwe Bank v. Peck, 427. National Newark Banking Co. v. Sec- ond Nat. Bank, 345. National Park Bank v. Ninth Nat. Bank, 148. National State Bank v. Rising, 247. Nay V. Lamb, 210. Nazro v. Puller, 250. Neeley v. McSparran, 233. Neff V. Horner, 251. Nelson v. Bank, 99, 100, 379. V. Edwards, 215. V. Potterall, 352, 363. Nevada Bank v. Luce, 99. Nevius V. Bank, 385, 387. Newark Banking Co. v. National Bank of Erie, 343. Newberry v. Trowbridge, 158. Newcomb v. Raynor, 305. Newell V. Doty, 182. Newman v. Aultman, Miller & Co., 312. V. Goza, 173. V. Ravenscroft, 133. V. Williams. 244. New Orleans Canal & Banking Co. v. Montgomery, 330. Newton v. Kennerly, 172. New York Firemen Ins. Co. v. Sturges, 239. Niagara Dist. Bank v. Fainnan & W. Mach. Tool Mfg. Co., 84, 356, 359. NichoUs V. Diamond, 81, 87. .514 CASES CITED. [The figures refer to pages.] Nichols V. Blackmore, 341, 347. V. Fearson, 243, 244. V. Goldsmith, 355. V. Johnson, 247. Nicholson v. Gouthit, 390. V. Sedgwick, 197, 202. Nickerson v. Ruger, 264. Nightingale v. Withington, 220. Nohle V. Walker, 172, 244. Nobles V. Bates, 290. Noel V. Murray, 20. Noll V. Smith, 254. Norris v. Despard, 398, 416. V. Langley, 285, 287. V. Solomon, 28. Northam v. Latouche, 233, 284. Northampton Nat. Bank v. Kidder, 309, 326, 334. North Atchison Bank v. Garrettson, 97. Northern Trust Co. v. Rogers, 419. Northwestern Coal Co. v. Bowman, 388, 415. Northwestern Iron Co. v. Meade, 80. Norton v. Dreyfuss, 280. V. Eilam, 344, 366. V. Lewis, 402. V. Waite, 315. Norwich Bank v. Hyde, 329. Nourse v. Prime, 237. Noxon V. Smith, 61. Noyes v. Gilman, 196. Oakey v. Wilcox, 250. Oakley v. Boorman, 107. Dates V. Bank, 15, 240. Oatman v. Taylor, 50. O'Brien v. Smith, 415. Ocean Bank v. Dill, 123. V. Fant, 339. Ocean Nat. Bank v. Carll, 264. V. Williams, 362. Ocoee Bank v. Hughes, 369. O'Conner v. Hurley, 21. Oddie V. National City Bank, 425. Odell V. Buck, 230. Ogden V. Saunders, 164, 350. Ohio & M. R. Co. V. Kasson, 240. Okie V. Spencer, 306. Olcott V. Tioga B. Co., 225. Oliver v. Bank of Tennessee, 395. Olsen V. Ensign, 275, 328. Olvey V. Jackson, 21. Omaha Nat. Bank v. Walker, 133. Onondaga County Bank v. Bates, 176. Oppenhelmer v. Farmers' & M. Bank, 317. Ord V. Portal, 213. Oregon Steam Nav. Co. v. Winsor, 291, Oridge v. Sherborne, 75, 350. Oriental Bank v. Blake, 383, 400. Ormes v. Beadel, 270. Ormsbee v. Howe, 264. Orr V. Lacy, 213. V. Maginnis, 341. Orrick v. Colston, 106. Ort V. Fowler, 62, 265. Oi-y V. Winter, 186. Osbom V. Hawley, 51. V. Pearsons, 59. Osgood's Adm'rs v. Artt, 107, 108, 134, 203. Osmond v. Fitzroy, 230. Otisfield V. Mayberry, 338. Oulds V. Harrison, 208. Outhwaite v. Luntley, 249. Outhwite V. Porter, 312. Overend, In re, 301. Overman v. Bank, 94, 98, 425. Overton v. Tyler, 51. Owen V. Barnum, 50. V. Homan, 308. V. Lavine, 85. V. Van Uster, 87. Owings v. Arnot, 249. Pack V. Thomas, 413. Pagan v. Wylie, 253. Page V. Cook, 41. V. Gilbert, 376. V. Heineherg, 224. V. Morrell, 258, 268. Paine v. Noelke, 6. Palm V. Watt, 255. Palmer v. Courtney, 168. V. Field, 178. V. Poor, 268. T. Pratt, 35. V. Stephens, 55. Pannell v. M'Mechen, 306. Pardee v. Lindley, 136. Parish v. Stone, 282. Park Bank v. Watson, 314, -316. Parker v. City of Syracuse, 39. CASES CITED. [The figures refer to pages.J 513 Parker t. Conner, 320. V. Gordon, 351, 390. T. Greele, 97. T. Kellogg, 357. V. Plymell, 53. V. Eeadick, 345. V. Stroud, 346, 359, 367. V. Totten, 214. Parkin v. Moon, 330. Parr v. Bliason, 242, 243. Parshley v. Heath, 401. Parsons v. Jackson, 52. Partridge v. Badger, 224. V. Davis, 110. Pasmore v. North, 72. Passumpsic Bank v. Goss, 267. Patience v. Townley, 348, 398, 399. Paton V. Colt, 284, 334. Patterson v. Bank, 427. V. Todd, 209. Pattillo V. Alexander, 110. Pattinson v. Luckley, 247. Patton V. Shanklin, 259. Paul V. Joel, 377. Payne v. Cutler, 314. Peabody Ins. Co. v. Wilson, 359, 38"?. Peacock v. Pursell, 365, 368, 369. V. Rhodes, 111, 329. Pearce v. Wilkins, 177. Pearson v. Bank of Metropolis, 356. V. Garrett, 35. V. Pearson, 278. V. Stoddard, 76. Pease v. Dwight, 134. T. Hirst, 133. V. Pease, 66. V. Warren, 299. Peaslee v. Robbins, 113. Peck V. Cochran, 90. T. Mayo, 189, 342. Peets V. Bratt, 70, 136. Peirce v. Pendar, 386. Pellecat v. Angell, 294. Penn v. Flack, 829. Pennington v. Baehr, 407. Penny v. Innes, 128. Pentz V. Winterbottom, 118, 119. People V. Cromwell, 365. V. D'Argencour, 255. V. Fromme, 245. V. Gates, 245. V. McDermott, 74. V. Tax Com'rs, 230. People's Bank v. Keech, 383. V. Legrand, 307. Perkins v. E'ranklln Bank, 75. V. White, 326. Perley v. Perley, 7, 275. Perrine v. Canal Co., 223. V. Hotchkiss, 237. Perry v. Smith, 46. Peterson v. Hubbard, 81. T. Johnson, 281. Petit V. Benson, 82. Peto Y. Reynolds, 31, 57. Pettee v. Prout, 12. Phelan v. Moss, 254, 321. Phelps V. Church, 110, 132. V. People, 255. V. Sargent, 133. V. Stocking, 387, 388. V. Town, 44. V. Vischer, 140. Philadelphia Bank v. Newkirk, 52, 53. Phillips V. Ford, 55. V. Franklin, 367. V. Gould, 376, 384. V. Poindexter, 363. V. Thurn, 156. Phllpott T. Bryant, 341, 356. Phipps V. Harding, 142. Phipson V. Kneller, 401, 402. Phoenix Bank v. Hussey, 24. Phoenix Ins. Co. v. Church, 313, 314. Pickett V. Merchants' Nat. Bank, 240. Pier V. Heinrichshoffen, 398. Pierce v. Crafts, 329. V. Indseth, 403. V. Kittredge, 92. V. Schaden, 384. V. Struthers, 161. Piersol v. Grimes, 247. Pierson v. Hutchinson, 338. Pigot's Case, 247, 252. Pike V. Irwin, 100. V. Street, 120. Pilkington v. Scott, 273. Pillans V. Van Mierop, 96. Pinard v. Klockmann, 25. Pindar v. Barlow, 285, 287. Pine V. Smith, 209. Piner v. Clary, 370. Pinkham v. Macy, 378. Pinnes v. Ely, 119. Pinney v. Gleason, 45. Pitman v. Breckenridge, 38. Pixley V. Boynton, 293. Planters' Bank v. Sharp, 225. Planters' Bank of Tennessee v. Evans, 131. 61b CASES CITJfiD. [The figures refer to pages.] Plato V. Reynolds, 341. Piatt V. Bank, 44. V. Beebe, 316. Plummer v. Lyman, 100. Pocklington v. Silvester, 349. Polk V. Splnks, 398. Pomeroy v. Tanner, 178. Poorman v. Mills, 347. Pope V. Bank of Albion, 421. V. Linn, 287. Poplett V. Stockdale, 288. Porter v. Cushman, 299. V. Kimball, 402. V. Pittsburg Bessemer Steel Co., 327. Porthouse v. Parker, 397, 401. Post V. Railway Co., 33, Potter V. Pearson, 4. V. Tallman, 185. V. Tubb, 284. Potts V. Mayer, 314, 325. V. Whitehead, 80. Powell V. Jones, 92. V. Waters, 181, 182, 243, 308. Power V. Finnie, 125. Powers V. French, 193. Prentiss v. Graves, 123. V. Savage, 186. Prescott Bank v. Caverly, 348. President, etc., of Turnpike Road v. Hurtin, 1, 6. Preston v. Whitney, 50. Prevot V. Abbott, 133. Price V. Campbell, 237. V. Easton, 81. V. Neal, 55, 147, 330. V. Price, 20, 147. V. Young, 364. " Priddy v. Henbrey, 176. Prideaux v. Criddle, 415. Prince v. Bank, 380. Printing & Numerical Registering Co. V. Sampson, 291. Pritchard v. Hirt, 215. Prouty V. Roberts, 195. V. Wilson, 307. Prutsman v. Baker, 71. Pruyn v. Milwaukee, 172. Puffer V. Smith, 265. Puget de Bras v. Forbes. 192. Pugh V. McCormick, 402. PuUiam v. Withers, 252. Pumpelly v. Phelps, 67. Purcell v. Allemong, 413, 417. Putnam v. Crymes, 59. V. Sullivan, 265, 357, 399. Q Quackenbush v. Leonard, 240. Quinby v. Merrltt, 45. Quinn v. Fuller, 177. V. Hard, 180. Quirk V. Thomas, 293. Rabberman v. Muehlhausen, 8. Raborg v. Peyton, 86. Ram churn v. Radakissen, 365. Ramuz v. Crowe, 339. Rand v. Hubbard, 198. Ranger v. Cary, 345; 347. Rankin v. Weguelin, 278. Rann v. Hughes, 4. Ransom v; Mack, 385. Rapelye v. Anderson, 175, 241. Raplee v. Morgan, 172. RatclifE V. Planters' Bank, 353, 357. Raubitschek v. Bank, 7. Rawdon v. Redfleld, 389. Ray V. Smith, 397. Raymond v. Mann, 397. V. Sellick, 278. Rea V. Dorrance, 395. Read v. Bank of Kentucky, 371. V. Cutts, 110. V. McNulty, 53. V. Marsh, 98. V. Wilkinson, 85. Reamer v. Bell, 334. Redlich v. Doll, 267, 268. Redman v. Adams, 39, 40. Reed v. Batchelder, 219. V. Prentiss, 281. V. Roark, 55. V. Wilson, 77, 350. Rees V. Overbaugh, 247. Reg. V. Harper, 56. Reid V. Furnival, 132. V. Morrison, 358. Reinicker v. Smith, 234. Remer v. Downer, 376. Remsen v. Graves, 165, 166. Renick v. Eobbins, 379. Renwick v. WilUams, 208. CASES CI TED. [The figures refer to pages.] 517 Eequa v. Collins, 389. Rex V. Bigg, 108. V. Hunter, 58. . V. Lambton, 69. V. Randall, 59. V. Thorn, 65. V. Treble, 250. V. Wilcox, 43. Rey V. Simpson, 141. Reynolds v. Appleman, 374. V. Dechaums, 234. V. Douglass, 402. V. Peto, 92. Rhea v. Allison, 314. Rhett V. Poe, 395, 397, 417. Rhine v. Robinson, 70. Rhodes v. Gent, 366. Y. Llndley, 45. Rice V. Grange, 310. V. Hogan, 366. V. Peet, 231. V. Stearns, 120, 121. Rich V. Starbuck, 59, 113, 258. Richards v. Barlow, 6. V. Betzer, 281. V. Daily, 208. V. Darst, 136. V. Prankum, 109. V. Griggs, 11. V. Warring, 8. Richardson v. Carpenter, 38. V. Lincoln, 120. V. Martyr, 34. V. Massachusetts Charitable Me- chanic Ass'n, 223. V. Rickman, 20. Richmond v. Diefendorf, 324. Rickford v. Ridge, 348. Rickle V. Dow, 112. Riddle v. Mandeville, 176. Ridley v. Taylor, 322. Riggin V. Collier, 24. Riggs V. American Tract See, 231. T. Hatch, 388. V. Lindsay, 80. Riker v. Mfg. Co., 41, 42. Riley v. Shawaeker, 327. Ripley v. Grant, 229. V. Greenleaf, 76. Risley v. Smith, 39. lUvanna Nav. Co. v. Dawsons, 224. Riverside Iron- Works v. Hall, 20. Roark v. Turner, 172, 244. Robarts v. Tucker, 427. Robbins v. Bacon, 8. Roberts v. Corbm, 408, 418. V. Jackson, 70. V. Snow, 42. Robertson v. Allen, 165. V. Burdekin, 186, 188. V. Kensington, 122, 123, 322. Robinson v. Ames, 341, 343, 396. V. Bartlett, 142. v. Brown, 16, 201. V. Crandall, 214. V. Hawksford, 413, 414. v. Lyman, 208. V. Perry, 208. V. Reynolds, 283. V. Smith, 244. V. Wilkinson, 16. V. Yai'row, 331. Rook V. Nichols, 281. Rock County Nat. Bank v. Hollister, 125, 215. Rock Island Nat. Bank v. Nelson, 334. Rockville Nat. Bank v. Holt, 305, 307. Rockwell V. Charles, 235. V. Elkhorn Bank, 224. Roehner v. Knickerbocker Life Ins. Co., 76. RofC V. Miller, 88. Rogers v. Blackwell, 228. v. Morton, 194. V. Walker, 229. Rogerson v. Ladbroke, 428. : Rolin V Steward, 427. Roll V. Raguet, 289. Rosa V. Brotherson, 314. Rose V. Sims, 272. Rosenwald v. Goldstein, 317. Ross V. Bedell, 332. V. Espy, 114. V. Hurd, 402. V. Milne, 81. V. Planters' Bank, 374. Rossman v. Townsend, 81. Rothschild r. Currie, 130, 368, 372, 403. Rounds V. Smith, 423. Rouquette v. Overmann, 187, 403. Rousillon V. Rousillon, 291. Row V. Dawson, 8. Rowe V. Tipper, 381, 393. V. Younsr, 359. Rowlands v. Springett, 376. Rowley v. Ball, 339. Rubey v. Culbertson, 12. .; Rucker v. Hiller, 369. Rucknian v. Bryan, ?93. Ruddell V. Walker, 367. 518 CASES CITED. [The figures refer to pages.] Rufe V. Webb, 27, 28. Ruiz V. Renauld, 97. Rumball V. Ball, 344. Russel V. Langstaffe, 112, 258, 259. Russell V. Ball, 121. V. Phillips, 80. V. Powell, 28. V. Whipple, 17, 30, 70, 136. v. Wiggin, 96. Safford v. Wyckoff, 224. Sager v. Tupper, 55. St. John V. Homans, 419. St. Louis, I. & M. S. Ky. Co. v. Cam- den Bank, 30. St. Louis Nat. Stockyards v. O'Reilly, 92. St. Stephen Branch Ry. Co. v. Black, 46. Salomon v. Hopkins, 56. V. Leather Co., 379. Salter v. Burt, 77, 350. Saltmarsh v. Tuthill, 285. Salt Springs Bank v. Burton, 351, 352. V. Syracuse Savings Inst., 156. Saltus V. Everett, 267. Sammons v. Halloway, 245. Sanders v. Bacon, 122. V. Blain, 201. Sanderson v. Bowes, 344, 359. V. Reinstadler, 385, 387. Sands v. Clarke, 358, 394. V. Lyon, 350. Sanford v. Norton, 363. Sargent v. Appleton, 305. V. Southgate, 208. Saunderson v. Jackson, 56. V. Judge, 355, 388. Savage v. Aldren, 123. V. King, 203. Sawyer v. Chambers, 123, 280, V. McLouth, 273. V. Patterson, 113. v. Warner, 329. Say V. Barwick, 234. Sayles v. Smith, 285. Scaife v. Byrd, 70. Scanland v. Porter, 142. SchafEner v. Ehrman, 427. Scliepp V. Carpenter, 181, 315. Schermerhorn v. Talman, 47. Schmied v. Frank, 401 Schmittler v. Simon, 39. Schmitz V. Mining Co., 30. Schnell v. Mill Co., 115. Schofield V. Bayard, 153, 156, 399. Scholefield v. Eichelberger, 398. Seholey v. Ramsbottom, 308. Scholfleld V. Earl of Loundesborough, 254. Schoonmaker v. Roosa, 278. Schroeder v. Central Bank, 419. V. Turner, 142. Schuler v. Israel Bank, 428. Schultz V. Howard, 142. Schwalm v. Mclntyre, 252. Schwenk v. Yost, 108. Scofield V. Day, 173, 189. Scotland Co. v. Hill, 327. Scott V. Bevan, 48. V. Lifford, 380. v. Lloyd, 237. V. Lufford, 393. V. Pilkington, 100. V. Schreeve, 13. Scudder v. Bank, 92, 100, 184. Seabury v. Hungerford, 113. Seaman v. Whitney, 81. Searcy v. Vance, 44. Sears v. Lantz, 109. Seaton v. Scovill, 392. Seaver v. Lincoln, 362. V. Phelps, 227, 228. Second Nat. Bank v. Basiner, 53. V. Williams, 419. Security Bank v. Fuel Co., 125. Sedgwick v. Stanton, 289. Seebold v. Tatlie, 250. Seeley v. Engell, 282. Seibel v. Vaughan, 254. Selby V. Eden, 359. V. McCullough, 20. V. Selby, 55. Seligman v. Ten Eyck's Estate, 13. Selser v. Brock, 164. Semmes v. Wilson, 172. Seneca Co. Bank v. Neass, 182. Sentance v. Poole, 227, 228. Senter v. Continental Bank, 418. Sergeson v. Sealey, 229. Serle v. Norton, 413. Serrell v. Railway, 417. Seventh Nat. Bank v. Cook, 426. Sewall V. Russell, 3T9, 391. Seybel v. National Currency Bank, 320. Seyfert v. Edison, 180. CASES CITED. [The figures refer to pages.] 519 Seymour v. Cowing, 71. V. Insurance Co., 172. V. Mickey, 113. Shackelford v. Hooker, 82, 84. Shade v. Creviston, 197. Shadwell v. Shadwell, 277. Shank v. Butsch, 55, 407. Sharp V. Bailey, 183. Sharpe v. Drew, 363. Shaver v. Ehle, 168. Shaw V. Camp, 35, 278. V. Clark, 327. V. Knox, 177. V. McNeill, 402. V. Railroad Co., 27. V. Smith, 60. Shaylor v. Mix, 386, 387. Shed T. Brett, 362, 379. Sheehy v. Mandeville, 20. Shelburne Falls Xat. Bank v. Towns- ley, 385, 386, 392. Shelby v. Judd, 109. Sheldon v. Benham, 386, 392. V. Horton, 402. Shelton v. Braithwaite, 376. Shenton v. James, 34, 40. Shepard v. Hall, 385. Shepherd v. Chamberlain, 351. Sheridan v. Mayor, etc., 12. Sherman v. Sherman, 302. Shinn v. Fredericks, 8. Shipley v. Carroll, 268. Shipman v. Bank, 62. Shisler v. Vandike, 256. Shoemaker v. Mechanics' Bank, 387. Shoenberger v. Lancaster Sav. Inst., 400. Shotwell V. Webb, 13. Shoulters v. Allen, 228. Shrieve v. Duckham, 378. Shriner v. Keller, 20. Shultz V. Depuy, 332. V. Payne, 258. Shuttleworth v. Stephens, 58. Shutts V. Fingar, 305, 346. Sice V. Cunningham, 345, 347. Siebeneck v. Anchor Sav. Bank, 306. Siebold v. Davis, 80. Siegel V. Bank, 49. Siffkin V. Walker, 66 Sigourney v. Lloyd, 125. Simpson v. Davis, 7, 275. V. Hall, 210. V. Moulden, 43. T. Pacific' Mut. Life Ins. Co., 424. Simpson v. Stackhouse, 253. V. Turney, 392. V. White, 403. Sims V. Smith, 219. Sinclair v. Baggaley, 287. V. Lynah, 376. Skelton v. Dustin, 352. SklUman v. Titus, 417. Slacum V. Pomery, 189. Slade V. Mutrie, 302. Sloan V. McCarty, 33, 35. Slocumb V. Holmes, 20. Sloman v. Cox, 248. Small V. Smith, 181. Smallwood v. Vernon, 131. Smedes v. Utica Bank, 385. Smentek v. Coonhauser, 33. Smilie v. Stevens, 32. Smith V. Abbott, 83, 85. V. Allen, 30, 31. V Bank, 363. V. Bellamy, 397. V. Boheme, 32, 45. V. Boulton, 377. V. Braine, 334. V. Brittain, 10. V. Caro, 41. V. Chester, 148, 195, 255, 331. V. Clarke, 114, 118, 205. V. Crane, 52, 53. V. De Witts, 199, 202. V. Eureka Flour Mills, 224. V. Ewer, 11. V. Hawkins, 307. V. Hiscock, 211, 282. V. Janes, 415. V. Johnson, 226. V. Kendall, 6, 53, 54, 76. V. Knox, 179. V. Livingston, 264, 334. V. Livingstone, 195. V. Lownsdale, 401. V. Mace, 248. - V. Tilarsaclv, 149. V. Miller, 365, 415. V. Moberly, 267. V. Mullett, 387, 393. V. Nightingale, 52. V. Philbrick, 72. V. Roach, 342. V. Sac Co., 333. V. Sawyer, 154. V. Shaw, 47. V. Shepard, 297. V. Sheppard, 255. 520 CASES CITED. [The figures refer to pages.] Smith V. Smith, 272. V. Whiting, 133, 202, 370. V. Wilcox, 286. V. Williamson, 233. Smithers v. Junker, 36. Snaith v. Mingay, 188, 25&. Snirts v. Overjohn, 265. Snow V. Perkins, 374, 403. Snyder v. Studebaker, 22G. Soares v. Glyn, 124. Sohn V. Morton, 308. Solarte v. Palmer, 377. Solomons v. Bank of England, 211. Sommerville v. Williams, 75. Souhegan Nat. Bank v. Boardman, 67. Southall V. Rlgg, 273. Southard v. Porter, 203. V. Wilson, 213. Southern Masonic Relief Tier Ass'n v. Laudenhach, 230. Southwick v. First Nat. Bank of Mem- phis, 264. V. Sax, 365. Sparrow v. Chisman, 178. Spaulding v. Andrews, 93, 98. V. Putnam, 110. Spear v. Crawford, 224. V. Pratt, 90, 91. Speck V. Pullman Car Co., 209. Spencer v. Allerton, 134. V. Ballou, 181, 315, 382. V. Carstarphen, 133. V. Halpern, 109. V. Harvey, 397, 401. V. Tilden, 237. Sperry v. Horr, 51, 245. Spies V. Gilmore, 399. Spinning v. Sullivan, 197. Spitler V. James, 821. Spooner v. Holmes, 13, 321. Sprague v. Duel, 230. V. Sprague, 275. Sproat V. Matthews, 40, 90, 92. Spurgeon v. Smitha, 305. ' Spurgin v. McPheeters. 28, 40. Stackpole v. Arnold, 66. Stacy V. Kemp. 282. Stafford v. Yates, 382. Stainback v. Bank, 363. 390. Stalker v. McDonald. 313. Stam V. Kerr, 369. Stanton v. Allen, 290. V. Blossom, 379, 3'?2. Staples V. Franklin Brnk, .351. Stapleton v. Banking Co., 51. State V. Cilley, 252. V. Corpening, 43. V. Hill, 245. V. Rice, 223. State Bank v. Hurd, 356. V. McCoy, 233. V. Slaughter, 383. State Capital Bank v. Thompson, 287. State Mut. Fire Ins. Co. v. Roberts, 13. Steele v. McKinlay, 87, 143. Stein v. Yglesias, 180, 211. Steman v. Harrison, 97. Stephens v. Graham, 249, 251. V. Monongahela Nat. Bank, 178. Stephenson v. King, 278. Sterling v. Marietta & S. Trading Co., 308. Sterry v. Robinson, 342. Stevens v. Bruce, 347. V. Oaks, 306. v. Park, 413. Stevenson v. Hyland, 312. V. O'Neal, 120. Stewart v. Anderson, 71. V. Eden, 73, 305, 383. v. Hidden, 296, 302. T. Insall, 281. V. Kennett, 379. V. Lansing, 264. V. Lispenard, 230. V. Millard, 368. V. Petree, 239. V. Smith, 413, 415. Stinson v. Lee, 66. Stix V. Mathews, 392. Stocken v. Collins, 377. Stocks V. Dobson, 12. Stockwell V. Bramble, 92, 98, 104. Stoddard v. Burton, 297. V. Kimball, 181. Stoessiger v. South E. Ry. Co., 56. Stone V. Clough, 338. V. Frost, 12. V. Peake, 280. V. Rawlinson, 198, 201. Storer v. Logan, 8.i. Storm V. Stirling, 59. Story V. Lamb, 8. Strange v. Price, 378. Stratton v. Hill, 170. Strawbridge v. Robinson, 24. Streit V. Sanborn, 287. Strong V. King, 351, 365. Struthers v. Kendall, 312. Stults V. Silva, 33, 36. CASES CITED. [The figures refer to pages.] 521 Sturdy v. Henderson, 344. Sturges V. Fourth Nat. Bank, 81, 92, 100. Sturtevant v. Ford, 180, 211. Sudler v. Collins, 250. Suffell V. Bank of England, 252. Suffolk Sav. Bank v. City of Boston, 327. Sullivan v. Langley, 264, 334, 335. V. Rudisill, 248. Sun Printing & Pub. Ass'n v. Tribune Ass'n, 286. Supervisors v. Scbenck, 225. Suse V. Pomp, 171, 342. Susquehanna Bridge & Bank Co. v. Evans, 114. Susquehanna Valley Bank v. Loomis, 175. Sussex Bank v. Baldwin, 354, 357, 361. Sutton V. Toomer, 252, 344. Suydam v. Westfall, 178, 237, 295. Svendsen v. Bank, 427. Swasey v. Vanderheyden, 218. Swayze v. Britton, 370, 379. Sweet V. Chapman, 241, 310. Sweetser v. French, 114. Swem V. Nevs^ell, 2UC. Swetland v. Creigh, 44. Swett V. Hooper, 172. Swift V. Tyson, 311. Swope V. Leffingwell, 800. V. Ross, 79, 83, 295, 296. Sylvester v. Crape, 347. Taft V. Sergeant, 219. Talbot V. Bank of Rochester, 257. v. Clark, 391. Talbott V. Suit, 25. Tappan v. Ely, 122. Tardeveau v. Smith's Ex'rs, 237. Tardy v. Boyd, 398. Tasseli V. Lewis, 349. Tassey v. Church, 49. Tatam v. Haslar, 335. Tatum V. ICelley, 293. Taunton Bank v. Richardson, 402. Taylor v. Atchison, 235. v. Croker, 149. V. Dobbins, 56. v. Drake, 100. V. French, 141. V. Shelton, G6. Taylor v. Snyder, 72, 357, 358, 399. V. Steele, 29, 31. Telford v. Patton, 44. Temple v. Baker, 110. V. Pullen, 259. Tenney v. Prince, 113. V. Sanborn, 329. Terry v. Parker, 394. Tevis v. Young, 56. Texas L. & T. Co. v. Carroll, 66. Thacher v. Dinsmore, 194. V. Pray, 312. V. Stevens, 139. Thackray v. Blackett, 396. Thatcher v. West River Nat. Bank, 177, 178, 179. Thayer v. Elliott, 184. Thielman v. Gueble, 346. Third Nat. Bank v. Clark, 215. V. Spring, 47. Thomas v. Railroad Co., 223. V. Roosa, 45. V. Shoemaker, 76. V. Thomas, 193. Thompson v. Clubley, 178. V. Cumming, 342. v. Ketcham, 356. T. Shepherd, 177. V. Sloan, 43, 46, 47 V. Waters, 224. V. Whitmarsh, 65. V. Williams, 374, 384. Thomson v. Lee Co., 206. Thorn v. Bell, 256. V. Rice, 387. Thornburg v. Emmons, 344. Thornton v. Dick, 88. Thorp V. Craig, 186. Thorpe V. Booth, 344. V. Peck, 351. Thurman v. Van Brunt, 74. Thurston v. Cornell, 238. V. M'Kown, 347. Tibbets v. Gerrish, 10. Ticonic Bank v. Stackpole, 370. Tidmarsh v. Grover. 250. Tiernan v. Jackson, 79. V. Woodruff, 306. Tillman v. Wheeler, 140. Timms v. Shannon, 13. Tindal v. Brown, 873, 380, 384, 390. Tinker v. McCauley, 110, 132. Tltcomb V. Thomas, 134. v. Vantyle, 230. Tittle V. Thomas, 59. 522 CASES CITED. [The figures refer to pages.] Tobey v. Barber, 365. V. Lennig, 374. Toby V. Maurian, 400. Todd V. Neal's Adm'r, 403. Tombeckbee Bank v. Dumell, 363. Tool Co. V. Norris, 289. Towne v. Rice, 49, 235. Town of Solon v. Williamsburgh Sav. Bank, 268. Town of Thompson v. Perrine, 206. Townsend v. Derby, 6, 74. V. Lorain Bank, 369, 378. Townsley v. Sumrall, 100, 101, 403, 416. Ti-abue v. Short, 187. Tracy v. Alvord, 278. V. Talmage, 294. Traders' Bank v. Bradner, 315. Trammel! v. Hudmon, 173. Trask v. Martin, 75. Trent Tile Co. v. Ft. Dearborn Nat. Bank of Chicago, 79. Treuttel v. Barandon, 126, 321. Trickey v. Larne, 278. Trieber v. Commercial Bank, 287. Triggs V. Newnham, 351. Trimbey v. Vignier, 188. Triplett v. Hunt, 382. Tripp V. Curtenius, 27. Trotter v. Curtis, 238. Trow V. Glen Cove Starch Co., 255. Troy City Bank v. Lanman, 84, 356. True V. Collins, 388. V. Fuller, 132. Trueman v Fenton, 272. V. Hurst, 220. Trustees of Union College v. Wheeler, 13. Tryon v. Oxley, 65. Tunno v. League, 398. TurnbuU v. Bowyer, 164, 33L Turner v. Brown, 244. • V. Keller, 164. V. Leach, 398. V. Leech, 381, 392. V. Mead, 348. V. Mining Co., 346. V. Samson, 395. V. Treadway, 313. Tuttle V. Bartholomew, 109. V. Catlin, 81. V. Standish, 339. Tye V. Gwynne, 278. Tyler v Carlisle, 293. V. Grardlner, 269. Tyler v. Gould, 79, 419. V. Young, 209. Tyson v. Rickard, 237. u Ulster County Bank v. McFarlan, 99. Underhill v. Phillips, 74. Union Bank v. Fowlkes, 353. V. Hyde, 24, 342, 370, 416. V. Middlebrook, 256. V "Willis, 142. Union Foundry & P. C. W. Works v. New York L. D. Co., 280. Union Nat. Bank v. Hunt, 226. V. Oceana Co. Bank, 418. United States v. Grossmayer, 398. V. National Park Bank, 257. V. White, 16, 202. Upham V. Prince, 110. Valle V. Cerre, 99. Vallett V. Parker, 71, 235, 267, 283-285. Valley Nat Bank v. Crowell, 49. Vanauken v Hornbeck, 248. Vanbibber v. Louisiana Bank, 426. Van Brunt v. EoflC, 248. Van Buskirk v. Insurance Co., 11. Vance v. Collins, 387. Van Deusen v. Sweet, 227, 229. Vandewall v. Tyrrell, 154. Van Duzer v. Howe, 178, 238, 253. Van Heath v. Turner, 2. Van Keuren v. Corkins, 12. Vanliew v Second Nat. Bank, 195. Van Patten v. Beals, 227, 228. Van Schaack v- Stafford, 241. Van Staphorst v. Pearce, 90. Van Vechten v. Pryn, 387. Van Vleet v Sledge, 115. Van Wart v. Woolley, 80. Vanwickle v. Downing, 367. Vanzant v. Arnold, 110. "S'athir v. Zane, 194. Veazie Bank v. Paulk, 242. Veeder v. Mudgett, 226. Verbeck v. Scott, 327. Vere v. Lewis, 406. Vlale V. Michael, 383. Vilet V. Camp, 185. Vinton v. King, 209. CASES CITED. [The figures refer to pagea.] 523 Vinton v. Peck, 68, 285. Violett V. Patton, 187, 259. Vogle V. Ripper, 255. Voorliees v. Voorhees, 269. Vosburgh v. Diefendorf, 264, 324, 334. Vyse V. Clarlie, 56. w Waekerbartli, Ex parte, 103, 156, 301. Wade V. Creighton, 141. Wadlington v. Covert, 37. - Wadsworth v. Sharpsteen, 230. Walt V. Pomeroy, 246, 253, 254. Wakefield v. Greenhood, 100. Waldo Bank v. Lumbert, 183. Walker v. Atwood, 84. V. Bank of Missouri, 86, 88, 386. V. Bank of State of New York, 86. v. Clay, 329. V. Bbert, 265. V. Hamilton, 173. v. Macdonald, 118. V. Roberts, 40. V. Stetson, 157, 341, 343. T. Turner, 870. V. Woollen, 36. Wall V. Hill, 230. Wallace v. Agry, 341, 343, 847, 365. V. Crilley, 351. V. McConnell, 80, 359. Walmsley v. Child, 4. Walrad v. Petrie, 59. Walsh V. Dart, 187, 352. V. Hunt, 254. Walter v. Haynes, 388. V. Kirk, 120. Walters v. Brown, 387. Walton V. Hastings, 249. T. Williams, 87. Walton Plow Co. v. Campbell, 248. Walwyn y. St. Quintin, 3^. Walz V. Alback, 141. Ward V. Allen, 91. T. Churn, 68. V. Evans, 20, 21. V. Howard, 314. V. Perrin, 389. V. Sugg, 241. Warden v. Howell, 181. Wardens & Vestrymen of St. James' Church V. Moore, 145. Warder v. Gibbs, 177. V. Tucker, 130, 395. Warder, Bushnell & Glessner Co. v. Gibbs, 201. V. Willyard, 248. Waring v. Betts, 899. V. Smyth, 247. Warner v. Whlttaker, 13, 197. Warren v. Durfee, 278. V. Oilman, 378, 387. Warren Bank v. Parker, 354. Warren Deposit Bank v. Robinson, 239. Warrington v. Early, 252. Washington Bank v. Lewis, 312. V. Triplett, 187. Washington Co. Mut. Ins. Co. v. Mil- ler, 42. Wasson v. Lamb, 125. Waterman v. Vose, 251. Watervliet Bank v. White, 118, 119. Watkins v. Bowers, 71. V. Crouch, 359. V. Maule, 203. Watrous v. Halbrook, 58. Watson V. Evans, 60, 61. V. Loring, 342. V. New England Bank, 213. V. Randall, 282, 315. V. Russell, 282. W^att V. Riddle, 173. Way V. Butterworth, 142. V. Richardson, 12. V. Smith, 33. V. Towle, 406. Wayland University v. Boorman, 223. Waynam v. Bend, 329. Weaver v. Barden, 309, 318, 325. Webb v. Morgan, 215. Webster v. Caldfo, 880. V. Cobb, 118, 132, 133. Weckler v. First Nat. Bank, 223. Weeks v. Esler, 25. WegerslofCe v. Keene, 82, 366. Weidler v. Kauffman, 11. Weidman v. Symes, 258. Weil, Succession of, 165. Weinstock v. Bellwood, 418. Welch V. Carter, 281. V. Goodwin, 257. V. Lindo, 120. V. Sage, 821. Weldon v. Buck, 160, 161, 342. Welford v. Beazely, 56. Wellington v. Jackson, 55, 256. Wells V. Brigham, 1, 7, 81. V. Hopkins, 280. 624 CASES CITED. [The figures refer to pages.] Wells V. Schoonover, 12. V. Whiteliead, 25. Wentworth v. Clap, 76. West V. Brown, 391. V. Russell, 230. West Boston Sav. Bank v. Thompson, 298. Westerfield v. Jackson, 231. Western Cottage Organ Co. v. Red- dish, 223. Westminster Bank v. Wheaton, 406. Weston V. Hight, 278. West River Bank v. Taylor, 380, 382. West St. Louis Sav. Bank v. Bank, 322. Wethey v. Andrews, 345. Whaley v. Houston, 363. Wheatley v. Strobe, 28. Wheeler v. Barret, 209. V. Field, 358, 400. V. Guild, 297. V. Warner, 366. Wheelock v. Freeman, 253. Whigham v. Pickett, 245. Whistler v. Forster, 106, 134, 203, 204, 408, 410. Whitaker v. Bank of England, 427, 429. Whitbeck v. Van Ness, 21. White, Ex parte, 252. V. Continental Nat. Bank, 125, 151, 152, 257. v. Cushing, 32. V. Haas. 250. V. Kuntz, 288. V. Madison, 66. V. Miners' Nat. Bank, 125. V. Stoddard, 349. Wliitehead v. Walker, 342. Whitehouse v. Hanson, 142. White Sewing Mach. Co. v. Dakin, 247. Whitfield V. Savage, 402. Whitmer v. Frye, 251. Whitney v. Dutch, 219. V. Snyder, 265. Whittaker v. Edmunds, 333. V. Howe, 291. Whittier v. Grafifam, 357. Whitwell V. Bennett, 329. V. Winslow, 16. Whitworth v. Adams, 242, 243. Wickes V. Caulk, 247. Wiffen V. Roberts, 175, 239, 3.52. Wiggin V. Bush, 235. Wigglesworth v. Steers, 232. Wilde V. Sheridan, 88. Wilders v. Stevens, 135. Wilkie V. Roosevelt, 243. Wilkinson v. Adam, 376. V. Johnson, 147, 156. V. Lutwidge, 147. Willcox V. Jackson, 234. Willets V. Bank, 59, 60, 406, 410, 421, 422. Williams v. Baker, 172. V. Bank of United States, 386, 389, 416. V. Cameron, 229. V. Germaine, 102, 153, 154. V. Matthews, 210. V. Potter, 125. V. Robbins, 66. V. Smith, 315, 316, 349. V. Teshomingo Sav. Inst., 164. V. Wade, 187. V. Waring, 353. V. Williams, 4. V. Winans, 100. Williamson v. Brown, 319. V. Watts, 218, 220. Willis V. Green, 364, 383. V. Sharp, 64, 65. V. Trambly, 197. Willmarth v. Crawford, 176, Willoughby v. Comstock, 50. Willoughby's Case, 28. Willse V. Whitaker, 123. Wilmarth v. Crawford, 285. Wilson V. Campbell, 42. V. Clements, 100. V. Ellsworth, 194. V. Lazier, 333. V. Nisbet, 233. V. Rocke, 334. V. Senier, 397. V. Swabey, 382. V. Tolson, 125. Wilson Sewing-Mach. Co. y. Spears, 12. Wilton V. Eaton, 272. Winberry v. Koonce, 11. Winchell v. Carey, 287. Windham Bank. v. Norton, 398, 399. Windsor Sav. Bank v. McMahon, 53. Wing, In re, 229. V. Terry, 160. Wlnsted Bank v. Webb, 240. Winter v. Drury, 79. V. Livingston, 278. CASES CITED. [The figures refer to pages.] 625 Wintermute v. Post, 85. Wintbop V. Pepoon, 342. Wisdom r. Becker, G5. Wise V. Charlton, 48. Wiseman v. Chlapella, 353. Wolcott V. Van Santvoord, 80, 144, 250, 367. Wolfe V. Jewett, 353. WolfordV. Andrews, 369. Wood V. Callaghan, 388. V. Corl, 75. V. Gibbs, 184, 187. V. McKean, 209. V. Mullen, 340. V. Pugh, 155. T. Sheldon, 169. V. Steele, 246, 249. V. Watson, 374. , Woodbury v. Woodbury, 134. Woodcock V. Bennet, 368. Woodford v. Dorwin, 68. Woodhull V. Holmes, 181. Woodin v. Poster, 356, 373, 384, 385. Woodland v. Fear, 427. Woodman t. Thurston, 401. Woodruff V. Merchants' Bank, 406, 409. Woods V. Armstrong, 235. V. Ridley, 186. V. Woods, 21, 296. Woodthorpe v. Lawes, 377, 380. Woodward v. Poster, 115. V. Rowe, 3. Woodworth v. Bank of America, 250, 358. V. Huntoon, 134, 326, 827. Wooley V. Lyon, 388, 403. Worcester Bank v. Wells, 97. Worcester County Bank v. Dorches- ter & M. Bank, 268, 321. Worden v. Dodge, 38. Workman v. Wright, 256. Works V. Hershey, 36, 40. Wormley v. Lowry, 314. Worth y. Case, 69, 70, 277. Worthington v. Cowles, 170. Wright V. Crabbs, 293. V. Hart, 44. V. Irwin, 194, 333. V. Pipe Line Co., 220. Wyatt V. Wallace, 235. Wyld, Ex parte, 154. Wynne v. Raikes, 98. Yale V. Ward's Ex'r, 24. Yates, Ex parte, 108. Yeaton v. Bank of Alexandria, 177. Yellow Medicine Co. Bank v. Tagley, 265, 267. Yingling v. Kohlhass, 16. Yocum V. Smith, 254. York Co. M. P. Ins. Co. v. Brooks, 164. Young V. Adams, 43. V. Bryan, 24, 416. V. Glover, 108. V. Grote, 151, 251, 253, 254, 268. V. Hill, 240. V. Hockley, 178. V. Lehman, 257. V. Shriner, 208. V. Stevens, 230, 231. Youngs V. Lee, 314, 315. Zalbriskie v. Cleveland, C. & C. R. Co., 165. Zeller v. German Sav. Inst., 418. Zimmerman v. Anderson, 51. INDEX. [THE FIGURES REFER TO ^AGES. ] A ACCEPTANCE, defined, 24, 78. effect, 79. classification of acceptances, 80. may be express, constructive, oral, or written, 81. in what name, 81. while bill is incomplete, 81. must be according to tenor of bill, 80, 82. immaterial departures from tenor of bill, 82, 84. qualified acceptance, 82, 84. conditional acceptance, 82, 84. who may accept, 81, 86, 101. necessity for delivery of acceptance, 88. forms and varieties of, as verbal, written, and implied from conduct, evidence of, 89, 90. written acceptance, 89, 90. verbal or parol acceptance, 89, 91, 99. implied from conduct, 89, 93. detention of bill, 94. destruction of bill, 94. on separate paper, 95. promise to accept, 95. parol promise to accept, 99. time allowed for acceptance, 103. accommodation acceptor, see "Accommodation." liability of acceptor, 144, 146, 151. facts which acceptor admits, or warranties, 146, 151. see "Estoppel." damages against acceptor, 170. for honor or supra protest, 101. liability of acceptor supra protest, 152. steps necessary to consummate liability of, 152. presentment to drawee at maturity, 152. protest on nonpayment by drawee, 152. presentment to acceptor supra protest 152. protest on nonpayment by acceptor supra protest, 152, NEG.BILLS (527) 528 INDEX. [The figures reler to pages.] ACCEPTANCE— Cont'd. notice on nonpayment by acceptor supra protest, 153. undertaking by drawer, tJiat drawee has capacity to accept, 159. that drawee will accept, 159. of check, 419. see "Presentment." ACCEPTOR, of bill, defined. 23. relation to bill, 79. liability of, 144, 146, 151. see "Acceptance." facts which he admits, or warranties, 146, 151. see "Estoppel." capacityof, warranty by, or estoppel of indorser, 162. damages against, 170. accommodation acceptor, see "Accommodation." supra protest, liability of, 152. steps necessary to consummate liability of, 152. presentment to drawee at maturity, 152. protest on nonpayment by drawee, 152. presentment to acceptor supra protest, 152. . protest on nonpayment by acceptor supra protest, 152. notice on nonpayment by acceptor supra protest, 153. by what law contract determined, 183. ACCOMMODATION, accommodation party defined, 176. liability of, 176. persons accommodated, 176. liability of, 176. diversion, 180. overdue accommodation paper, 211. when accommodation paper has inception, as against defense of usury, 241. payment by accommodated party a discharge, 296. payment by accommodation acceptor or maker a discharge, 296. see "Corporations." ACCORD AND SATISFACTION, see "Defenses." ACTION, who may sue, 10-12, 212. form of, what law determines, 190. ADMINISTRATORS, see "Executors and Administrators." AGENTS, see "Principal and Agent." ALLONGE, defined, 105. INDEX. 529 [The figures refer to pages.] ALTERATION OF INSTKUMENT, as a defense, 246, 248. negligence facilitating, 253. blanks, when may be filled, 258. writing contract over indorsement in blank, 112, 113. warranty by, or estoppel of, Indorser, 162. AMOUNT, see "Bill of Exchange"; "Promissory Note." ANOMALOUS INDORSEMENT, see "Indorsement." ANTECEDENT DEBT, whether value, 310. see "Purchaser for Value without Notice." ASSIGNMENT, assignability distinguished from negotiability, 9. whether writing an indorsement or assignment, 109. of non-negotiable Instruments, 8-14. action by assignee, 10. notice of assignment, 11. consideration, 12. subject to equities between prior parties, 13. ATTORNEY'S PEES. stipulation in bill or note for payment of, efCect, 50. B BANKRUPTCY, of holder, transfer by operation of law, 198. of party to be notified of dishonor, notice to whom, 384. BILL OF EXCHANGE, defined, 22. foreign bill, 22. inland bill, 22. origin of bills, 1. parties defined, 23. form, 23. essentials, in general, 26. indicia of negotiability, 14. negotiability not necessary to form or substance of, 1. origin of negotiability of, 1. date, 72. place of date, 72. necessity for and meaning of "value received," 73. days of grace, 75. order contained in bill, 27. certainty as to terms, 31. uncertainty as to event, 31, 33. NEG.BILLS.— 34 530 INDEX. [Tbev&gureB refer to pageiJ BILL OF EXCHANGE— Cont'd unceilaiuty as to time, 31, 35. payment out of particular fund, 32, 37. additional condition or agreement not of CBsence of order, 42, 48. giving holder option between payment in money or some other thing, 42, 50. payable on demand or at sight, etc., 32, 40. no time of payment expressed, 32, 41. payable in installments, 32, 41. must be for payment of money only, 42. payment in property other than money, 42, 45. option given holder, 42, 50. performance of other acts in addition to payment of money, ^, 48. definition of money, 43. amount must be certain, 42, 52. interest, 42, 52. exchange, 42, 52. payable in foreign money, 46. specification of parties, 54. signature of parties, 54, 55. certainty as to parties, 56. designation of drawee, 54, 57. designation of payee, 54, 59. payable to order of maker, 54, 61. payable to fictitious person, 54, 61. delivery, 67. in escrow, 67. upon condition, 70. discount of bill by drawee before acceptance, 79. relation of drawee to bill before acceptance, 79. acceptance, see "Acceptance." accommodation parties, see "Accommodation." payment by, 19-21. non-negotiable bill, 7. liability of drawer, 156. undertaking of drawer, 159. liability of acceptor, 144, 146, 151. see "Acceptance." facts which acceptor admits, 146, 151. see "Estoppel"; "Warranties." liability of indorser, see "Indorsement" BLANK, indorsement in blank, 110. indorsement written on blank note. 111, 112. BLANKS, when may be filled, 258. BONA FIDE HOLDER, see "Purchaser for Value without Notice." INDEX. &S&; [The figures refer to pages.] BURDEN OF PROOF, as to whether one is a puicbaser for value without notice, 327> c CANCEULATION, discharge of instrument by, 302. CAPACITY, of parties to contract, 63. see "Defenses." of drawer, admission by acceptor, 146. . of drawee to accept, undertaliing of drawer. 159. of prior parties, warranty by or estoppel of indorser, 162. CERTAINTY, as to order in bill or promise in note, 31. as to amount to be paid, 42. as to parties, 54. CERTIFIED CHECK, in general, 419. see "Check." CHECK, deflAed, 404. distinguished from bill of exchange, 404, 405, 408. date, 405, 408, 409. must be payable on demand, 406. memorandum checiis, 407. drafts on bank in another state, 408. checks as negotiable instruments, 408. when overdue, 410. presentment, protest, and notice of dishonor, effect of delay, 412. when must be presented, 413. delay in presentment, when discharges drawer, 413. failure to give notice of dishonor, when discharges drawer, 415. protest not essential, 416. excuses for failure to present, 416. status of stale check 417. rights of holder against bank, 418. certification and acceptance, 419. meaning of certification, 420. effect of certification, 421. discharge of drawer and indorsers by certification or acceptance, 422; certification at instance of drawer, 424. parol acceptance by bank, effect, 424. payment on unauthorized indorsement, 426. failure of bank to honor check, 427. payment by, 19-21. CHOSE IN ACTION, see "Assignment"; "Nonnegotiable Instruments." 532 INDEX. [The figures refer to pages.] COLLATERAL SECURITY, transfer of bill or note as, whether for value, 310. bills transferred as, presentment, 364. see "Purchaser for Value without Notice." COMMON COUNTS, when available In action on bill or note, 328, note, 57. CONDITIONAL ACCEPTANCE, in general, 82, 84. see "Acceptance." CONDITIONAL INDORSEMENT, in general, 119, 121. see "Indorsement." CONFLICT OF LAWS, validity and execution of contract, by what law determined, 183, 184. interpretation and obligation of contract, by what law determined, 183, 185. damages, by what law determined, 188. remedy, by what law determined, 190. presentment, protest, and notice of dishonor, by what law determined, 402. CONSIDERATION, defined, sufficiency, 276. necessity for and meaning of value received," 73. bill or note imports a consideration, 5-7, 73, 274. want or failure of, as a defense, 270, 276. for assignment of nonnegotiable instrument, 12. illegality of, 234, 283. statutory prohibition, 234, 283. violation of the Sunday laws, 285. other statutes, 287. common-law prohibition, 288. contravention ol public policy, 289. in general, 289. restraint of trade, 290. effect of illegality, 291. illegality as being totalor partial, 291. knowledge of illegality, intention, 292. accommodation paper, see "Accommodation." CONSTRUCTIVE NOTICE, see "Notice." CORPORATIONS, ultra vires acts, instruments executed by, 63, 222. indorsement and transfer by, 63, 222. accommodation paper made by, bona fide purchaser, 183. instrument payable to "cashier" or other officer, who may Indorse, 133, note 96. COUNTERCLAIM, paper transferred after maturity, not subject to, 207, note 53. INDEX. 5Z^ [The figures refer to pages.] OOVEHTURE, see "Married Women." CUEEENT FUNDS, instrument payable in, effect, 44. CUSTOM OP MERCHANTS, defined and explained, 2. D DAMAGES, against acceptor, maker, drawer, and indorsers, upon the bill or note, and upon the warranties, 160, 170-176. re-exchange, when an item, 170, 171, 173. when drawee refuses to accept, 170, 173. for breach of warranty, 170, 174. rate of interest payable as, by what law determined, 188. payable in lieu of re-exchange, by what law determined, 189. measure of, recoverable by indorsee of accommodation paper who has- paid less than face value, 243. L)j.TE, of bin or note, 72. day of, excluded in calculating date of payment, 76. place of, prima facie place of issue, 188. see "Blanks." DAYS OP GEACE, defined, 75, 349. how computed, 76. by what law determined, 186. what instruments entitled to, 344. DEATH, of holder, transfer by operation of law, 198. of joint payee or indorsee, rights of survivor, 198. of maker or acceptor, presentment to whom, 364. of party to be notified of dishonor, notice to whom, 383. UEPENSES, as against immediate party, and as against purchaser for value without notice, 216-308. as real or personal, 216. real defenses, 218. coverture, 221. ; instruments executed by married woman, 221. j 'indorsement by married woman, 221. Infants, 220. instruments executed by, 220. indorsements by, 220. corporations, ultra vires, 222. instruments executed by, 222. indorsements by, 222. •534 INDEX. tThe figures rater to paee*.] ^DEFENSES— Cont'd. persons non compos mentis, 226. instruments executed by, 226. indorsements by, 226. drunken persons, 226. instruments executed by, 226. indorsements by, 226. Instruments avoided by statute, 234. usury, 236. failure to affix revenue stamps, 244. alterations, 246, 248. forgery, 246-254. .personal defenses, 260. fraud, 262. duress, 268. want or failure Of consideration, 270, 276. illegality of consideration, 234, 283. statutory prohibition, 234, 283. violation of the Sunday laws, 286. other statutes, 287. common-law prohibition, 288. contravention of public policy, 289. in general, 289. restraint of trade, 290. effect of illegality, 291. illegality as being total or partial, 291. knowledge of illegality, intention, 292. discharge of instrument, 294. payment, 295. payment or purchase, 299. payment supra protest, 300. discharge by act of holder, 302. renunciation, 302. cancellation, 302. discharge by operation of law, 303. discharge of parties secondarily liable, 304, summary of real and personal defenses, 308. DEFINITIONS, acceptance, 24, 78.' acceptor, 23. accommodation parties, 176. bill of exchange, 22. foreign bill, 22. inland bill, 22. custom of merchants or law merchant, 2. ■check, 404. days of grace, 75. dishonor, 340, INDEX. 535 (The fleurei refer to page*.] DEFINITIONS— Cont'd, draft, 24. drawer, 23. drawee, 23. holder, of blU, 23. of note, 26. Immediate parties, 192. indorsement, 105. Indorser, of bill, 23. of note, 26. indorsee, of bill, 24. of note, 26. maker, 26. money, 48. payee, of bill, 23. of note, 26. promissory note, 25. remote parties, 192. value received, 73. DELIVERY, of bill or note, 67. escrow, 67. upon condition, 71. of acceptance, 88. of indorsement, 136. transfer by, 204. see "Transfer." DEMAND, instrument payable on, 32, 40. when demand to be made, 40. when to be presented, 337, 343-348. DESTRUCTION OF BILL, whether an acceptance, 94. DISCHARGE OP INSTRUMENT, as a defense, 260, 294. payment, 294, 295. by act of holder, 802. by operation of law, 303. discharge of parties secondarily liable, 804 DISCOUNT, of bill by drawee before acceptance, 79. DISHONOR, see "Notice of Dishonor." DIVERSION, of accommodation paper, 180. DONATIO MORTIS CAUSA, see "Gift ' 536 INDEX [The figures refer to pages.] DEAFT, defined, 24. DRAWEE, of bill, definea, 23. designation of, 57. relation to bill before acceptance, 79. discount of bill by drawee before acceptance, 79. relation of, to bill after acceptance, 79. existence of, undertaking of drawer, 159. capacity to accept, estoppel of drawer to deny, 159. DRAWER, of bill, defined, 23. signature of, 54, 55. rights and liabilities, before acceptance, 79. after acceptance, 80. liability of, 156. undertaking of drawer, 159. existence of drawee, 159. capacity of drawee to accept, 159. that the drawee will accept, 159. discharge from liability by acts or neglect of holder, 304. existence of, admission by acceptor, 146. signature of, admission by acceptor, 146. authority to draw, admission by acceptor, 146. capacity of, admission by acceptor, 146. accommodation drawer, see "Accommodation." damages against, 160, 170. capacity of, warranty by, or estoppel of, indorser, 162. by what law contract determined, 183. payment by, not a discharge, 297." presentment for acceptance or payment, to charge drawer, 3361 see "Presentment." notice of dishonor, to charge drawer, 336. see "Notice of Dishonor." DRUNKENNESS, as a defense, 218, 226. instruments executed by drunken persons, 226. indorsement and transfer by drunken persons, 226. DUEBILL, not a note, 29, 31. DURESS, as a defense, 268. EQUITABLE ASSIGNMENT, see "Assignment." INDEX. 637 [The figures refer to pages.] EQUITY, equitable assignment, 10. relief against inadvertent failure to Indorse, 200, 202. EQUITIES, title of bona fide holder for value not subject to, 12. see "Defenses." assignee of nonnegotiable Instrument takes subject to, 13, 197. see "Defenses." effect of failure to indorse, 200. transfer of overdue paper subject to, 207. ESCROW, delivery in, 67. ESTOPPEai, facts which acceptor admits, 146. genuineness of drawer's signature, 146. existence of drawer, 146. capacity of drawer, 146. authority to make draft, 146. competency of payee to indorse, 146. facts which acceptor does not admit, 151. genuineness of payee's or subsequent indorsements, 151. genuineness of terms contained in bill, 151. undertaking or estoppel of drawer, 159. existence of drawee, 159. ■ capacity of drawee to accept, 159. that the drawee will accept, 159. facts which the indorser is estopped to deny, 162. genuineness of instrument, 162. tl(at the instrument is a valid and subsisting obligation, 162. that the obligations of all prior parties are valid, 162. capacity of prior parties, 162. that he, as indorser, has title, and the right to transfer, 162. facts which the indorser without recourse is estopped to deny, 167. facts which the transferror by delivery is estopped to deny, 167. by negligence facilitating alteration, 253. EXCHANGE, stipulation for, does not invalidate bill or note, 42, 52. see "Damages." ■ EXECUTORS -AND ADMINISTRATORS, power to transfer instrument, G3. whether they incur liability, 63. transfer to, on death of holder, 198. presentment to, on death of maker or acceptor, 364. notice of dishonor to, on death of party to be notified, 383. EXEMPTIONS, waiver of, in Dill or note, effect. 50. ■538 INDEX. CThe figures refer to pages.] EXPENSES, see "Damages." FAILURE OF CONSIDERATION, see "Consideration." FEiES, notarial fees, see "Damages." FEME COVERT, see "Married Women." J'lOTITIOUS PAYEE, instrument payable to, effect, 54, 61. F'ORBIGN BILL, see "Bill of Exchange"; "Protest." FOREIGN LAW, see "Conflict of Laws." FORGERY, as a defense, 246, 254. estoppel of, or warranty by, indorser, 162. of bill in respect of terms, acceptor not estopped, lol. of indorsements, estoppel of acceptor, 151. of drawer's signature, admission by acceptor, 146. iORM, of bill of exchange, 22. of promissory note, 26. indicia of negotiability, 14. see "Bill of Exchange"; "Check"; "Promissory Note." FRAUD, as a defense, 262. FRAUDSi STATUTE OF, parol acceptance or promise to accept, '89, 91, 101. G 'GAMING, note given for gaming consideration, 334, note 56. ■GIFT, of donor's note, invalid as gift inter vivos or donatio mortis causa, 278, note, 211. of note of third person, 278, note 211. GRACE, see "Days of Grace." •GUARANTY, whether writing an indorsement or guaranty, 109, 132. INDEX. 539 [S'lie figures refer to pagei.] GUARDIANS, power to transfer Instrument, 63. whether they incur liability, 63. H HOIJ>ER, of note, defined, 26. of bill, definea, 23. HOLDER IN DUE COURSE, see "Purchaser for Value without Notice." HONOR, acceptance for honor, 101. payment for honor, 300. HUSBAND AND WIFE, see "Married Women." r ILLEGAL AGREEMENTS, illegality as a defense, 234, 283. by what law validity determined, 183. see "Consideration." IMPLIED ACCEPTANCB, see "Acceptance." INDICIA, of negotiability, 14. see "BiU of Exchange"; "Promissory Note." INDORSEE, of bill or note, defined, 24-26. see "Indorsement"; "Purchaser for Value without Notice." INDORSER, of bill or note, defined, 23, 26. damages against, 170. accommodation indorser, see "Accommodation." capacity of, warranty by or estoppel of subsequent indorser, 162. liability of, 156, 162. see "Indorsement." by what law contract of determined, 183. payment by, not a discharge, 297. discharge of, 304. presentment for acceptance or payment, to charge Indorser, 338, see "Presentment." notice of dishonor, to charge drawer, 336. see "Notice of Dishonor." INDORSEMENT, defined, 105. formal requisites, 105. 540 INDEX. [The figures refer to pages.] INDORSEMENT-Cont'd. indorsement or assignment, 108. indorsement or guaranty, 109, 132. in blank, 110. writing contract over indorsement in blanis, 112. indorsement written on blank bill or note, 112, 113. parol evidence, whether admissible to vary blank indorsement, 114, special or in full, 116. instrument originally payable to bearer, 116. combination of indorsements in full and in blank, 118. without recourse, 119, 120. conditional Indorsement, 119, 121. restrictive indorsement, 119, 124. nature of indorsement, 128. as a contract, 128. as a transfer, 128, 130. requisites of Indorsement, 131. following tenor of instrument, 131. who may indorse, 133. Instrument payable to "cashier," 133, note 96. necessity for delivery, 136. anomalous or irregular indorsements, 138. by person whose name does not otherwise appear, 138. indorsement before indorsement and transfer by payee, 138. in name of partnership, notice, 322. title of indorsee, 12. not subject to equities between original parties, 13. see "Defenses." forgery of indorsement, 246, 254. accommodation indorser, see "Accommodation." liability of indorser, 156. warranties or facts which indorser is estopped to deny, 162. genuineness of instrument, 162. that the instrument Is a valid ahd subsisting obligation, 162. that the obligations of all prior parties are valid, 162. capacity of prior parties, 162. that he, as indorser, has title and the right to transfer, 162. indorser without recourse, 169. damages against indorser, 170. genuineness of, no admission by acceptor, 151. discharge of indorser, 304. payitient to another than the holder, 13. competency of payee to indorse, admission by acceptor, 146, necessity for, to transfer instrument, 200. effect of failure to indorse by mistake or othervrise, 200. effect of, by what law determined, 183, 187. INDEX. 641 [The figures refer to pages.] INFANCY, as a defense, 220. instruments executed by infants, 63, 218. indorsement and transfer by infant, 218. INLAND BILL, see "Bill of Exchange." INNOCENT HOLDER, see "Purchaser for .Value without Notice." INSANITY, see "Lunacy." INSTALLMENTS, instrument payable In, 32, 41. INTEREST, reservation of, does not invalidate bill or note, 42, 52. payable as damages, rate of, by what law determined, 18a talien in advance on face value of paper, not usurious, 289. compounding, whether usurious, 240. see "Usury." INTOXICATION, see "Drunkenness." I U, not a note, 29, 31. IRREGULA.R INDORSEMENT, see "Indorsement." JUDGMENT, power in note to confess, efCect, 50. KNOWLEDGE, see "Notice." liARCENY, see "Stolen Instrument." LAW MERCHANT, defined and explained, 2. LEGAL TENDER, how determined, 43. LEX FORI, when governs, 183, 184, 190. see "Conflict of Laws." 542 INDEX. (The figures refer to pages.] LEX LOCI CONTRACTUS, when governs, 183. see "Conflict of Laws." LEX LOCI SOLUTIONIS, when govems, 183. see "Conflict of Laws." LOST INSTRUMENT, rights of bona fide holder. 111. LUNACY, as a defense, 226. Instruments executed by persons non compos mentis, 63, 218, 226. Indorsement and transfer by person non compos mentis, 63, 218, 22S. M MAKER, of note, defined, 26. signature of, 54, 55. liability of, 144. damages against, 170. capacity of, warranty by, or estoppel of indorser, 162. contract of, by what law determined, 183. accommodation maker, see "Accommodation." MARRIED WOMEN, ' marriage of holder, rights of husband, 198. transfer to married woman, rights of husband, 198. coverture as a defense, 218, 221. instruments executed by, 63, 218, 221. indorsement and transfer by, 63, 218, 221. MEASURE OP DAMAGES, see "Damages." MEDIUM OF PAYMENT, in general, 42. MEMORANDUM CHECKS, in general, 407. MERCHANTS, see "Custom of Merchants." MONEY, defined, 43. instrument must be payable in, 42-47. MONTHS, how reclioned, 76. N NEGLIGENCE, facilitating alteration of Instrument, 253. INDEX. 548- [The figures refer to pages,] NEGOTIABILITY, origin of, 1-8. purpose of, 17, 18. indicia of, 14r-17. see "Bill of Exchange"; "Promissory Note." distinguished from assignability, 9-14. see "Assignment"; "Indorsement"; "Transfer." the statute of Anne, 2, 4. construction of, 5. other statutes regulating, 15. by what law determined, 183, 186. the custom of merchants, or law merchant, defined and explained, 2. see "Bill of Exchange" ; "Checks"; "Defenses"; "Indorsement"; "Pur- chaser for Value without Notice"; "Transfer." NEGOTIABLE INSTRUMENTS, see "Bill of Exchange"; "Checli"; "Promissory Note." NEGOTIABLE INSTRUMENTS LAW, history, 430. in what states adopted, 432. text, 433-i89. NEGOTIATION, see "Transfer." NOTARY PUBLIC, may maise presentment, 361. ' certificate of protest, 362. fees, when an item of damages, 170, 172, 173. whether presentment by clerk sufficient foundation for protest, 362, note *^ NON COMPOS MENTIS, see "Drunkenness"; "Lunacy." NON-NEGOTIABLE INSTRUMENTS, distinguished from negotiable instruments, 1, 5-8. assignment of, 9-14. see "Assignment." distinguished from negotiation, 9-14. presumption of consideration, 5-7. NON-NEGOTIABLE NOTES, within statute of Anne, 6. whether consideration presumed, 6. distinguished from negotiable notes, 7. NOTE, see "Promissory Note." NOTICE, of assignment of non-negotiable instrument, 11. of equities, 317. actual notice, 317, 319. constructive notice, 317, 321. see "Purchaser for Value without Notice." S 44 INDEX. [The figures refer to pages.] NOTICE OF DISHONOR, an implied condition, 32. necessity for, 330, 3C7. defined, 372. how, when, and where it must be given, 372. sufficiency of notice, 373. identification of instrument, 374. statement of presentment, etc., 376. by whom notice should be given, 379. to whose benefit notice accrues, 381. to whom notice should be given, 383. method of giving notice, 384. tim^e of giving notice, 390. effect of failure to give notice of dis^honor, 367. excuses for failure to give notice, 394, reasonable diligence, 397. waiver of notice, 401. by what law determined, 402. of non-payment by acceptor supra protest, 152. of check, 412. not necessary to charge accommodated indorser, 183. NOTARIAL FEES, see "Damages." NUDUM PACTUM. see "Consideration." OPERATION OF LAW, transfer by, 198. ORDER, contained in bill, 27. see "Bill of Exchange." ORDER OF PROOF, on trial, 327. ORIGIN, of negotiability, 1. OVERDUE PAPER, may be transferred, 207. rights of transferee, 207. P PAROL AOCEPTANCB, see "Acceptance." PAROL EVIDENCE, whether admissible to vary blank Indorsement, 114. INDEX. 645 [The figures refer to pages.] PARTIES, to bill, 23. to note, 26. specification, 54. who may indorse, 133. immediate parties, 192. remote parties, 192. who may sue on instrument, 212 who may accept bill, 81, 86. see "Acceptance." accommodation parties, see "Accommodation." certainty as to, 56. specification of, 54. capacity of parties, 63. see "Acceptor"; "Corporations"; "Drawee"; "Drawer"; "Drunken- ness"; "Holder"; "Infancy"; "Indorsee"; "Indorser"; "Lunacy"; "Maker"; "Married Women" ; "Payee." PARTNERSHIP, accommodation paper made in name of, bona fide purchaser, 183. iiTegular indorsement in name of, effect of as notice, 322. where persons primarily liable are, presentment, to whom made, 364. notice of dishonor, to whom given, 383. PAYEE, of bill, defined, 23. of note, defined, 26. designation of, 54, 59. payable to order of maker or drawer, 54, 61. payable to fictitious person, 54, 61. competency to indorse, admission by acceptor, 146. PAYMENT, medium of, 42. time ot payment, days of grace, 75. discount of bill by drawee before acceptance, 79. by negotiable instrument, effect, 19-21. when a discharge and defense, 12, 260, 294, 295. payment or purchase, 299. payment supra protest or for honor, 300. of non-negotiable instrument to assignor, rights of assignee, 10-13. by accommodated party a discharge, 183. time of, by what law governed, 186. of forged instrument, recovery by payor, 256 see "Presentment." PAYMENT FOR HONOR, see "Payment Supra Protest." PAYMENT SUPRA PROTEST, see "Payment." NEG.BILLS.-35 546 INDEX. [The figures refer to pages.] PERSONAL. DEFENSES, see "Defenses." PERSONAL REPRESENTATIVES, see "Executors and Administrators," PLEADING, In action on bill or note, 328, note 57. PLEDGE, see "Collateral Security." PRE-EXISTING DEBT. see "Antecedent Debt." PRESENTMENT, an implied condition, 32. necessity for, 336. purposes of, 337. manner of, 337, 338. time of, 40, 337, 344. days of grace, 75. place of, 337, 338, 353. by whom and to whom, 360-362. effect of failure to present, 360, 364. excuses for failure to present, 394. reasonable diligence, 397. waiver of presentment, 401. by what law determined, 402. to acceptor supra protest, 152. to drawee to fix liability of acceptor supra protest, 152. for payment, not necessary to charge accommodated indorser, 183. of check, 412. PRESUMPTION, of consideration for non-negotiable Instrument, 5-7. of title in holder, 12. as to payment by bill or note, whether absolute or conditional, 19-21. as to whether party is a purchaser for value without notice, 327. PRINCIPAL AND AGENT, power of agent to transfer instrument, 65. whether he incurs liability, 65. undisclosed principal, 65. PROMISE, contained in note, 29. see "Promissory Note." PROMISSORY NOTE, defined, 25. the statute of Anne, 2, 4. construction of, 5. non-negotiable note, 5-7. p.nyment by, 19-21. INDEX. 547 [The figures refer to pages.] PROMISSORY NOTE— Cont'd, parties to note, 26. origin of negotiability of, 1. form, 26. negotiability not necessary to form or substance of, 1. essentials of note, in general, 26. indicia of negotiability, 14. days of grace, 75. delivery, 67. in escrow, 67. upon condition, 71. date, 72, 73. place of date, 27. the promise contained in note, 29. certainty as to terms, 31. uncertainty as to event, 31, 33. uncertainty as to time, 31, 35. payment out of particular fund, 32, 37. additional condltioh or agreement not of essence of promise, 42, 48. giving holder option of payment in money or some other thing, 42, 50. payable on demand or at sight, etc., 32, 40. no time of payment expressed, 32, 41. payable in installments, 32, 41. must be for payment of money only, 42. payment in property other than money, 42, 50. option given holder, 42, 50. performance of other acts in addition to payment of money, 42, 48. definition of money, 43. amount must be certain, 42, 52. interest, 42, 52. exchange, 42, 52. payable in foreign money, 46. specification of parties, 54. signature of malier, 54, 55. certainty as to parties, 56. designation of payee, 54, 59. payable to order of maker, 54, 61. payable to fictitious person, 54, 61. necessity for and meaning of "value received," 73. accommodation parties, see "Accommodation." liability of maker, 144. see "Maker." liability of indorser, see "Indorsement." PROTEST, an implied condition, 32. necessity for, effect of failure to protest, 360, 368. acceptance supra protest, 101. in order to hold acceptor supra protest, l.'i2. 548 INDEX. [The figures refer to pages.] PROTBST-^ont'd. on non-payment by acceptor supra protest, 152, fees, when an item of damages, 170, 172, 173. ■waiver of, 401. by wliat law determined, 402. of check, 412. PUBLIC POLICY, agreements in contravention of, 289. PUECHASEE FOR VALUE WITHOUT NOTICE, vrhat constitutes, 309. value, what is, 310. whether antecedent or pre-existing debt is value, 310. transfer as collateral security, whether for value, 310. where purchaser pays less than face, amount of recovery, 316. notice, 317. actual notice, 317, 319. constructive notice, 317, 321. bona fides, or good faith, 323. when notice must exist, 325. notice immaterial if transferror a purchaser for value without notice, 325. overdue paper, 207. presumption and burden of proof, and order of proof, 327. defenses as against, 216. defenses as real or personal, 216. real defenses, 218. personal defenses, 260. coverture, 221. Infancy, 218. corporations, ultra vires, 222. persons non compos mentis, 226. drunken persons, 226. statutes avoiding instrument, 234. usury, 236. failure to stamp, 244. alterations, 246, 248. forgery, 246, 254. common personal defenses, 260. fraud, 262. duress, 268. want or failure of consideration, 270, 276. Illegality of consideration, 234, 283. statutory prohibition, 234, 283. violation of the Sunday laws, 286. other statutes, 287. common-law prohibition, 288. contravention of public policy, 289. in general, 289. restraint of trade, 290. INDEX. 549 [The figures refer to pagea.] PURCHASER FOR VALUE WITHOUT NOTICE— Cont'd, effect of illegality, 291. illegality as being total or partial, 291. knowledge of Illegality, Intention, 292. discharge of the instrument, 294. payment, 295. discharge by act of holder, 302. discliarge by operation of law, 303. discharge of parties secondarily liable, 304. stolen instruments. 111. lost instruments, 112. PURPOSE, of negotiability, 17. Q ■QUALIFIED ACCEPTANCE, in general, 82, 84. see "Acceptance." ■QUALIFIED INDORSEMENT, identical with indorsement without recourse, 119. see "Indorsement." R REAL DEFENSES, see "Defenses." RE-EXCHANGE, when an item of damages, 170. damages payable in lieu of, 171. by what law determined, 189. see "Damages." HELEASE, discharge of instrument by, 302. when a personal defense, 260. HEMEDY, what law determines, 190. DENUNCIATION, discharge of instrument by, 302. when a personal defense, 260. RESTRAINT OF TRADE, agreement in, 290. RESTRICTIVE INDORSEMENT, in general, 119, 124. as notice, 322. see "Indorsement"; "Purchaser for Value without Notice." JRBTENTION, of bill, whether an acceptance, 94. 550 INDEX. [The figures refer to pages.] s SATISFACTION, see "Discharge of Instrument." SET-OFF, paper transferred after maturity, not subject to, 207, note 53. see "Defenses." SIGHT, Instrument payable at, 32, 40. when to be presented, 337, 343-348. effect of failure to present, 364. SIGNATURE, sufficiency, 54, 55. of indorser, 108. of drawer, admission by acceptor, 146. SPECIAL INDORSEMENT, identical with indorsement in full, 116. see "Indorsement." STAMPS, failure to affix revenue stamps, effect, 244. "War Revenue Act," 245. STATUTE OF ANNE, establishing negotiability of notes, text of, 4. construction, 5. STATUTE OF FRAUDS, parol acceptance or promise to accept, 89, 91, 99. STATUTE OF LIMITATIONS, by what law determined, 190. STATUTES, statutory avoidance of instrument, 234. see "Defenses"; "Purchaser for Value Without Notice." STOLEN INSTRUMENT, transfer of, 12. rights of bona fide holaer, 111. SUNDAY, violation of the Sunday laws, 286. SUPRA PROTEST, acceptance supra protest, 101. payment supra protest, 300. SURETIES, discharge of drawer or indorser, 304. SURVIVORSHIP, of joint payee or indorsee, 1C8. INDEX. .551 [The figures refer to pages.] TENDER, readiness of debtor at place of payment, when equdvalent to tender, 307. TENOR, of bill, 81, 82. indorsement must follow, 131. TIME, of payment, days of grace, 75. TITLE, of indorsee or holder, see "Indorsement"; "Transfer." presumed to be in holder, 12. warranty of, by Indcrser, 162. TRADE, RESTRAINT OF, unlawful agreements, 290. TRANSFER, indorsement as a transfer, 125, 128. effect of Indorsement as, by what law determined, 187. In general, 191-215. defined, 191. validity as between immediate parties, 192. methods of transfer, 196. by assignment, 196. rights of assignee, 197. by operation of law, 198. death of holder, 198. bankruptcy of holder, 198. marriage of feme sole, 198. husband and wife, 198. death of joint payee or indorsee, 198. by negotiation, 200. negotiation by indorsement, 200. negotiation by delivery, 204. overdue paper, 207. rights of transferee, 207. of nonnegotiable Instrument, see "Assignment." of lost instrument, 112. of stolen instrument, 12, 111. title of holder, 12. presumption of title in holder, 12. not subject to equities between original parties, 13. TRANSFER BY DELIVERY, negotiation by, 204. see "Transfer." TRANSFERROR BY DELIVERY, warranties of, 167. see "Warranties." 552 INDEX. [The figures refer to pages.] TRUSTEES, power to transfer instrument, 63. whether they incur liability, 63. u ULTRA VIRES, see "Corporations." UNDISCLOSED PRINCIPAL, see "Principal and Agent." UNLAWFUL AGREEMENTS, in general, 234, 283. see "Consideration." UNCERTAINTY, as to parties, 54. as to amount to be paid, 42. as to order in bill or promise in note, 31. USUAL COURSE OF BUSINESS, meaning of term, 324. see "Purchaser for Value without Notice." USURY, as a defense, 236. by what law determined, 183, 185. V VALUE, what constitutes, 310. see "Purchaser for Value without Notice." VALUE RECEIVED, necessity for and meaning of expression, 73. VERBAL ACCEPTANCE, see "Acceptance." w WAIVER, of exemptions, in bill or note, effect, 50. of presentment, protest, and notice of dishonor, 394, 401. WAR REVENUE ACT, see "Stamps." WARRANTIES, by acceptor, 146. genuineness of drawer's signature, 146. existence of drawer, 146. capacity of drawer, 146. INDBX. 65S ITae figures refer to pagenj WAKRANTIES-Cont'd. authority to make draft, 146. payee's competency to Indorse, 146. facts which acceptor does not admit, 151. genuineness of payee's and subsequent indorsements, 151. genuineness of terms contained in bill, 151. by drawer, 159. existence of drawee, 159. capacity of drawee to accept, 159. that the drawee will accept, 159. by indorser, 162. genuineness of instrument, 162. that the instrument is a valid and subsisting obligation, 162. that the obligations of all prior parties are valid, 162. capacity of prior parties, 162. that he, as indorser, has title, and the right to transfer, 162. by Indorser without recourse, 167. by transferror by delivery, 167. damages for breach, 170. WITHOUT RECOURSE, see "Indorsement." WEST FCBLISHINO CO., FBINTEBS AHB BTEBEOTYPEBB, BT. FADL, UIHIC. €je 5c>fn6ooft ^ene^* C6491 This series is to comprise elementary treatises on all the principal subjects of the law. The books are made on the same general plan, in which certain special and original features are made prominent These are: 1. A brief analytical presentation of the principles and rules of the subject This part is distinguished typographically by being printed in large black type, and these black-letter paragraphs, running through the book, constitute a complete, though concise, synopsis of the law of the subject. Like the syllabus of a case, this affords a bird's-eye view of the whole and its parts, and will be found useful by the lawyer who wishes to refresh his memory of the outlines of this branch of the law. 2. A Commentary, being a more extended presentation of the top- ics in the leading analysis, distinguished by being set in different type. The typographical separation of these two parts enables the examiner to obtain, in the first place, a general, comprehensive grasp of the sub- ject as a whole, and of the relation of one part to another, and, by re- reading in connection with the more extended commentary, to fix the [details clearly in mind. 3. Notes, in still different type, containing a copious citation of authorities, including the leading and most important cases. These are so distinguished as to still further illustrate the principles. PRICE, $3.75 PER VOLUME, INCLUDING DELIVERY. WEST PUBLISHING CO., St. Paul, Minn. ($0e ®om6oot Retries.) (^ ^anbBooft of ^Pe ]law of (giffe an^ (Uo^ee, Q5g (prof. €^*rfe0 (p. (llotton. THIRD EDITION. TABLE OF CONTENTS. Chapter I. OP NEGOTIABILITY SO FAR AS IT RE- LATES TO BILLS AND NOTES : Cover- ing the origin, purpose, and indicia of nego- tiability, distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter II. OF NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSEN- TIAL REQUISITES : Covering definition, form, and essentials, the order, tbe promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter IH. ACCEPTANCE OF BILLS OP EXCHANGE : Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the - various kinds of indorsements, and showing iheir requisites and eflEect, Chapter V. OP THE NATURE OF THE LIABILITIES OF THE PARTIES : Covering liability of maker, acceptor, drawer, indorser, rights and liabilities of accommodation and accommo- ^ted parties, estoppel and warranties, and £images for breach. Chapter VI. TRANSFER : Covering definition, validity, and various methods of transfer, and status of . overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIII. THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is, and discussing consideration, good faith, notice, overdue pax>er, presumption, and bui^en of proof, etc. Chapter IX. OP PRESENTMENT AND NOTICE OP DIS- HONOR : Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc. Chapter X. CHECKS : Covering generally the law relating to checks. APPENDIX: The Negotiable Instruments Law. 1 VOL 553 PAGES S3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C649-1 it^ IgomfiooS ^eries.) ♦ ♦oCV ♦ ♦ ^citt^Booft of Ctimimf J^att), @S TTm. &. Cfdtft, 3t., Author of a "Handbook of the Law of Contracts." TABIiE OF CONTENTS. CHAPTER I. DBPTNITION OF CRIME : The nature of crime and ground of punistinient. CHAPTER II. CBIMINAL LAW : How the criminal law is pre- scribed; the common law: statutes, and the powers of state and federal legislatures. CHAPTER III. CLASSIFICATION OF CRIMES: As treason, fel- onies, misdemeanors, etc. ; merger of offenses. CHAPTER IV. THE MENTAL ELEMENT IN CRIME: Con- sidering the will, intention, motive, and crim- inal intention or malice. CHAPTER V. PERSONS CAPABLE OF COMMITTING CRIME: Covering also exemption from responsibility, and discussing infancy, insanity, drunkenness, ignorance or mistake of law or of fact, provo- cation, necessity and compulsion, married wo- men and corporations. CHAPTER VI. PARTIES CONCERNED: Covering effect of joining in criminal purpose, principles in first and second degrees, accessories before and after the fact, terms " aider and abettor " and "accomplice." CHAPTER VII. THE OVERT ACT : Covering also attempts, so- licitation and conspiracy. CHAPTER VIII. OFFENSES AGAINST THE PERSON: Cover- ing homicide, murder, and manslaughter, with consideration of the different degrees, acci- dent, self-defense, etc. CHAPTER IX. OFFENSES AGAINST THE PERSON (Contin- ued) : Covering abortion, mayhem, rape, sod- omy, seduction, assaults, false imprisonment, kidnapping, abduction. CHAPTER X. OFFENSES AGAINST THE HABITATION: Covering arson and burglary. CHAPTER XI. OFFENSES AGAINST PROPERTY: Covering larceny, embezzlement, cheating at common law and by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, etc. CHAPTER XII. OFFENSES AGAINST THE PUBLIC HEALTH, MORALS, ETC. : Covering nuisances in gen- eral, bigamy, polygamy, adultery, fornication, lewdness, eta CHAPTER XIIL OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY: Covering barretry, obstruct- ing justice, embracery, prison breach, mispri- sion of felony, compounding crime, perjury, bribery, misconduct in ofdce, etc. CHAPTER XIV. OFFENSES AGAINST THE PUBLIC PEACE: Covering dueling, unlavrfnl assembly, riot, affray, forcible entry and detainer, libels on private persons, etc. CHAPTER XV. OFFENSES AGAINST THE GOVERNMENT: Covering treason and misprision of treason. CHAPTER XVL OFFENSES AGAINST THE LAW OP NA- TIONS: As piracy. CHAPTER XVn. JURISDICTION: Covering territorial Umits of states and United States, jurisdiction as deter- mined by locality, federal courts and the com- mon law, jurisdiction conferred by congress, persons subject to our laws, etc. CHAPTER XVIII. FORMER JEOPARDY: In generaL 1 VOL. 450 PAGES. S3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. &) (t$e gomfiooS ^erteg.) (^ ^ftttbfiooft of €pe Ban) of €on^racf^, QSj TOm. £. C&tft, 3t., Author of a " Handbook of Criminal Law." CHAPTER I. CONTRACT IN GENERAL: Covering ItB defi- nition, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER n. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and efCect of acceptance, revocation, and lapse of offer, etc CHAPTER ni. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and their characteristics. CHAPTER IV. REQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by executor, promise to answer for another, agreements in consideration of marriage and in relation to land, and agreements not to be performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION : Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, eto. CHAPTER VI. CAPACITY OF PARTIES: Covering political and professional status, infants, insane and drunken persons, married women, and corpo- intioua. CHAPTER Vn. REALITY OP CONSENT: Covering mistake, misrepresentation, fraud, duress, and undue influence. CHAPTER Vin. LEGALITY OP OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc. CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, eta CHAPTER X. INTERPRETATION OP CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc. CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc., and remedies on breach of contract, CHAPTER XII. AGENCY : Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, eUs. CHAPTER Xin. QUASI CONTRACT: Covering obligations cre- ated by law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, eta 1 VOL.. 932 PAGES. $3.75 DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. (4) ($^ ^omBoofi ^mee.) (^ ^anifiooft of Common ^Satt) (pfeabin^* QSg QKenJamm %. ^^ipman. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OF ACTION: Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, etc. Chapter HI. THE PARTIES TO ACTIONS : Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of parties plaintiff or defendant. Chapter IV. THE PROCEEDINGS LN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc, the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action in general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter VI. THE Pr6dTJCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. Chapter VH. MATERIALITY m PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VHI. SINGLENESS OR UNITY IN PLEADING : Cov- ering the rules in general, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, etc Chapter IX. CERTAINTY IN PLEADING: Covering the venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and speoial re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal efle^ conformance to precedent, commencement and conclusion. Chapter XI. DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, eta Chapter XH. MISCELLANEOUS RULES: Covering con- formance to process, alleging damages and production of suit, order of pleading, defecie, plea in abatement, dilatory pleas, etc APPENDIX: Forms. This book embodies such of the rules and principles of Common-Law Pleading as are still recognized and applied in this country. A knowledge of the common-law system is of advantage, il indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHINQ CO., St. Paul. Minn. (5) (t6c fomfiooS §ttite.) (§2 %' Cm^m QSfdcft, ^econb (Sbtfton. TABLE OF CONTENTS. Author of Black's Law Dictionary, Treatise* on Judgmeatg, Taji Titles, etc. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Consideripg the meaning of "Constitutional" and "Unconstitutional;" written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE tTNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc. Chapter III. BSTABLISHMENT AND AMENDMENT OF CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Uoustitu- tiou and of State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS: Considering the office and duty of the j udiciary in this direction. Chapter V. THE THREE DEPARTMENTS OF GOVERN- MENT: Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VT. THE FEDERAL EXECUTIVE: Considering the election, qualiflcations, Impeachment, compensation and independence of the Presi- dent, his oath of oiHce, veto power, pardoning and military power, and treaty-making pov^er; vacancy in offlcej the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc Chapter VII. FEDERAL JURISDICTION: ConsideriTi? the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc. Chapter VIII. THE POWERS OF CONGRESS: Considering the conslitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution : Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, -eiiC. Chapter X. KEPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE POWER IN THE STATED Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidei'ing the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc Chapter XIV. THE POLICE POWER: Considering the police power as vested in congress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc Chapter XVI. THE RIGHT OP EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc Chapter XVII. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc Chapter XVIH. CIVIL RIGHTS, AND THEIR PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law, vested rights, trial by jury, etc. Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, etc. Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto laws, habeas corpus, etc. Chapter XXI. LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the obligation and the impairment of the contract, power of legislature \A contract, remedies on contracts, etc Chapter XXII. RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etO- 1 VOL.. 740 PAGES. $3.75. DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. C1596 (6) ($6e IgomBooS ^eries.) (^ ^attl>6ooft of (gg (Ttorman ^dt&c. TABLE OF CONTENTS. Chapter I. NATURE AND DEFINITION OP EQUITY. Chapter H. PRINCIPLES DEFINING AND LIMITING JU- RISDICTION: Considering jurisdiction over crimes, adequate legal remedy, complete re- lief, and multiplicity of suits. Chapter III. THE MAXIMS OF EQUITY: Deflnition and classification of maxims; the enabling and re- strictive maxims- Chapter IV. THE DOCTRINES OF EQUITY: Considering estoppel, election, satisfaction, performance, and conversion. Chapter V. THE DOCTRINES OF EQUITY (Continued): Considering conflicting rights of purchasers, assignees, notice, bona fide purchasers, priori- ties, etc. Chapter VI. THE DOCTRINES OP EQUITY (Continubd) : Considering penalties and forfeitures, liqui- dated damages. Chapter VH. GROUNDS FOR EQUITABLE RELIEF; Con- sidering accident, mistake, fraud, etc. Chapter VIII. PROPERTY IN EQUITY— TRUSTS; Covering^ definition, history, and classification of trusts, charitable trusts, duties and liabilities of trus- tees, remedies of cestui que trust, eta Chapter IX. PROPERTY IN EQUITY — MORTGAGES, LIENS, AND ASSIGNMBNTa Chapter X. EQUITABLE REMEDIES : Covering accounting, contribution, exoneration, subrogation, and marshaling. Chapter XI. EQUITABLE REMEDIES (Continued): Cov- ering partition and settlement of boundaries. Chapter XII. EQUITABLE REMEDIES (GoNTiNnED); Cov- ering specific performance, and considering enforceable contracts, grounds for refusing re- lief, etc. Chapter XIH. EQUITABLE REMEDIES (Continued): Cov- ering injunctions, and considering their juris- dictional principles, classes of cases where remedy may be used, eta Chapter XIV. REFORMATION, CANCELLATION, AND QUIETING TITLE. Chapter XV. ANCILLARY REMEDIES : Covering discovery, bills to perpetuate testimony, interpleader, receivers, eta i VOL., 474 PAGES, $3-75. DELIVERED. WEST PUBLISHING CO., St. Paul. Minn. (7) (t!^ ^omfiooft Series.) (^ ^anb6ooft of Cviminaf (pvou^uv^, @ufgor of a "^ftn^fiooft of Crimmftf featw," Mii a "gftn^fiooft of Confrftcfs." TABLE OF CONTENTS. Chapter I. JURISDICTION: Covering courts of criminal ju- risdiction and venue. Chapter II. A.PFREHENSION OP PERSONS AND PROP- ERTY : Covering arrest in general, warrants, estradition, searches and seizures of property, and taking property from prisoner. Chapter III. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT: Covering right to release on bail, habeas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OF ACCUSATION: Covering the indict- ment and presentment, information, coroner's inquisition, time of prosecution, and nolle prosequi, etc Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of offense and descrip- tion of defendant. Chapter VT. PLEADING— THE ACCUSATION (Continued): Covering alle6ooft of €§c Baw of tov(0. €bt»tn ^. 2( guests; commencpment of relation; duty to receive guest; liability for guests' goods; lien; termination of relation; liability as ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lien; liability as insurers and as ordinary bailees; carriers of live stock; carriers of "baggage; contracts and notices limiting liability; ter- mination of liability; connecting carriers, etc.; post-office department; private car- riers. Chapter VIII. CARRIERS OF PASSENGERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations; ticket as evidence of pas- senger's rights; right to make regulations; injuries to passengers; contracts limiting- liability; termination of liability; ejection friira vehicle: connecting carriers, and cov- ering the subject generally. Chapter IX. ACTIONS AGAINST CARRIERS: Actions against carriers of goods and carriers of passengers; parties: form of action; plead- mg; evidence; damages. > 1 VOLUME. 675 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C995 (13) t^^ f^om6oo§ ^eriee.) **\jT** ^anUooM ^kmcntciv^ Ban?, Q5g nJJafter ©enfott ^mitg. Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Part I— ELEMENTARY JURISPRUDENCE. CHAPTER I. NATURE OP LAW AND THE VARIOUS SYSTEMS: Moral, divine, municipal. International, mari- time and martial law. CHAPTER n. of (Reaf (pvopcvt^. Q5g (Bdtf of). §oi»ftin6, (^. Q5., EE (Jtt. TABLE OF CONTENTS. Chapter I. WHAT IS REAL PROPERTY: Real and personal property, fixtures, equitable conver- sion, personal interests in land. Chapter II> TENURE AND SEISIN. Chapter III. ESTATES AS TO QUANTITY— FEB SIM- PLE: Classification of estates, freehold, fee-simple, creation, right of user and aliena- tion. Chapter IV. ESTATES AS TO QUANTITY (Continued)— ESTATES TAIL: Classes, origin, crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entail. Chapter V. ESTATES AS TO QUANTITY (Continued^— CONVENTIONAL LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter TI. ESTATES AS TO QUANTITY (Continued)— LEGAL LIFE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- eral homestead act. Chapter VII. BSTATES AS TO QUANTITY (Continued)— LESS THAN FREEHOLD: Estates for years, letting land on shares, tenancies at will, tenancies from year to year, letting of lodgings, tenancies at sufferance, licenses. Chapter VIII. ESTATES AS TO QUALITY ON CONDI- TION—ON LIMITATION: Estates on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO QUALITY (Continued)— MORTGAGES: Parties, nature, form, rights and liabilities of mortgagor and mort- gagee, assignment of the equity of redemp- tion, assignment of the mortgage, priority of mortgages and other conveyances, regis- tration, discharge of a mortgage. Chapter X. EQUITABLE ESTATES: Statute of nses, classification of trusts, — express, implied, resulting, constructive, — incidents of equita- ble estates, charitable trusts. Chapter XI. ESTATES AS TO TIME OF ENJOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Case, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XII. ESTATES AS TO NUMBER OF OWNERS -JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary, estates in entirety, estates in partnership, incidents of joint estates, partition. Chapter XIII. INCORPOREAL HEREDITAMENTS: Basements, creation, classification, inci- dents, destruction, rights of way, highways, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HOLD AND CON- VEY REALTY: Infants, persons of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS ON ALIENATION: Re- straints imposed by law, restrsiiuts in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE: Acquisition of title by state and pri- vate persons, grant from state, conveyan- ces, common-law convejances, conveyances under statute of uses, modern statutory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial process; conveyances under licenses, under duress; tax titles, em- inent domain. 1 VOL. 589 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul. Minn. C1191a (16) (g ©an^BooR of €?e &Cif» of (petfiron0 anb ©ome^^ic (gePafiot\0, TABLE FABT I. HUSBAND AND WIFE. OF CONTENTS. Chapter I. MARRIAGE: Covering definition and essen- tials; capacity of parties! reality of con- sent; formalities in celebration; annul- ment and avoidance; validating acts; con- flict of laws, etc. Chapter II. PERSONS OF THE SPOUSES AS AF- FECTED BY COVERTURE: Covering rights inter se; crimes and torts of married women; crimes and torts as between hus- band and wife; torts against married wo- men; actions for alienation of affections; crim. con., etc. Chapter III. RIGHTS IN PROPERTY AS AFFECTED BY COVERTURE: Covering wife's earn- ings; wife's choses in action and in posses- sion; wife's chattels real; administration of wife's estate; equitable and statutory separate estate; community property; cur- tesy; dower; estates by the entirety, etc. Chapter IV. CONTRACTS, CONVEYANCES, ETC., AND QUASI-CONTRACTUAL. OBLI- GATIONS: Covering, inter alia, husband's liability for wife's necessaries, antenuptial debts, and funeral expenses; wife as a sole trader; wife as husband's agent; convey- ances, sales, and gifts by the wife, etc. Chapter V. WIFE'S EQUITABLE AND STATUTORY SEPARATE ESTATE: Covering their nature; jus disponendi; power to charge by contract, etc. Chapter VI. ANTENUPTIAL AND POSTNUPTIAL SETTLEMENTS: Covering the subject generally. Including marriage as a consid- eration; the statute of frauds; validity against creditors and purchasers, etc. Chapter VII. SEPARATION AND DIVORCE: Covering agreements for separation; jurisdiction to grant divorce; grounds for divorce; de- ll fenses in actions for divorce; legislative di- vorce, etc. PABT II. PARENT AND CHILD. Chapter VIII. LEGITIMACY, ILLEGITIMACY, AND ADOPTION: Covering legitimacy of chil- dren; adoption of children; status of illegiti- mate children. Chapter IX. DUTIES AND LIABILITIES OF PAR-, ENTS: Maintenance, protection, and edu- cation of child; allowance out of child's estate; child as parent's agent; parent's lia- bility for crimes and torts of child, etc. Chapter X. RIGHTS OF PARENTS AND OP CHIL- DREN: Right to custody; service and earnings of child; correction of child; emancipation of children: action by parent for injuries to child; gifts, contracts, and conveyances between; advancements; dnt7 to support parent; domicile of child, etc. FABT III. GUARDIAN AND WARD. Chapter XI. GUARDIANS DEFINED — SELECTION AND APPOINTMENT: Covering natural guardians; testamentary guardians; statu- tory guardians; guardians by estoppel; guardians of insane persons; guardians ad litem, etc. Chapter XII. RIGHTS, DUTIES, AND LIABILITIES OF GUARDIANS: Right to custody and serv- ices of ward; maintenance of ward; change of ward's domicile; management of ward's estate; foreign guardians; inventory and accounts; compensation of guardian; trans- actions between guardian and ward, etc Chapter XIII. TERMINATION OF GUARDIANSHIP — ENFORCING GUARDIAN'S LIABILI- TY: Covering the subject generally. PART IV. INFANTS, PERSONS NON COMPOTES MENTIS, AND ALIENS. Chapter XIV. INFANTS: Covering contracts of infants, In- cluding ratification and disaffirmance; lia- bilities for necessaries, etc.; capacity to hold office, to make a will, and as witness- es; .liability for torts and crimes; infants a;3 parties to actions, etc. Chapter XV. PERSONS NON COMPOTES MENTIS AND ALIENS: Covering insane and drunken persons, their contracts, their lia- bility for torts and crimes and testament- ary capacity, etc. PART V. MASTER AND SERVANT, Chapter XVI. CREATION AND TERMINATION OF RE- LATION: Remedies for brench of con- tract; rights and duties and liabilities inter se and as to third persons, etc C1843 1 VOIitTME. 589 PAGES. $3.75, DELIVERED, WEST PUBLISHING COMPANY, ST. PAUU MINN. (17) Gn t^ §omfioofi ^eriee.) m&T.. (Bjctcuiove anb (^l^mmie^rafow By Simon 6reenleaT Cro$wcll, AnthoT of <• Electricity," "Patent Case*," etc TABLE OF CONTENTS. Part I.— DEFINITIONS AND DIVISION OF SUBJECT. Chapter I. DEFINITIONS AND DIVISION OF SUBJECT: Ex- ecutors and administrators defined; analysis of book. Part II.— APPOINTMENT AND QUALIFICATIONS. / diapter II. APPOINTMENT IN COURT: Necessity of adminis- tration; necessity of appointment by court; Ju- risdiction; concluslvenesa of decrees of probata courts, etc. Chapter III. PLACE AND TIME OF APPOINTMENT AND REQ- UISITES THEREFOR: Place of appointment; property necessary to give Jurisdiction; time limit for application. Chapter IV. WHO MAT CLAIM APPOINTMENT AS EXECU- TOR: Designation In will; appointment by dele- gation; executor of executor; non-assignability of offlca. Chapter V. WHO MAT CLAIM THE RIGHT TO ADMINISTER: Principle which governs the right; order of pre- cedence; creditors; preferences among kindred. etc. Chapter VI. DISQUALIFICATIONS FOR THE OFFICE OF EX- ECUTOR OR ADMINISTRATOR: Infanta, mar- ried women, Idiots, lunatics, convicts, corpora- tions; poverty and Insolvency; absolute and dis- cretionary Incompetency, etc. Chapter VII. ACCEPTANCE OR RENUNCIATION: Express or implied renunciation. Chapter VIH. PROCEEDINGS FOR APPOINTMENT OP EXECU- TORS AND ADMINISTRATORS: In general. Chapter IX. SPECIAL KINDS OP ADMINISTRATIONS: Admin- istration cum testamento annexe; de bonis non; during minority; pendente lite; public adminis- trator; executor de son tort, etc. Chapter X. FOREIGN AND INTERSTATE ADMINISTRATION: Validity of foreign wills; territorial limit of va- lidity of letters; principal and ancillary adminis- tration; conflict of laws; comity, etc. Chapter XI. JOINT EXECUTORS AND ADMINISTRATORS: Na- ture of estate; rights, powers and liabilities; rem- edies between, etc. Chapter XII. ADMINISTRATION BONDS: Covering the subject generally. Part III.— POWERS AND DUTIES. Chapter XIII. INVBNTORT— APPRAISEMENT— NOTICE OF AP- POINTMENT: Covering the subject generally. Chapter XIV. ASSETS OP THE ESTATE: What are assets; fix- tures; emblements; animals; ownership at time of death, etc. Chapter XV. MANAGEMENT OF THE ESTATE: Rights and 11*- bllltles of executors or administrators; collectloa and Investment of assets, taxation, etc. Chapter XVT. SALES AND CONVEYANCES OF PERSONAL OR REAL ASSETS: Covering sales In general, sales of land to pay debts, power to mortgage, etc. Chapter XVII. PAYMENT OF DEBTS AND ALLOWANCES— IN- SOLVENT ESTATES: Covering priority of dehU, widow's allowance, expenses of funeral and last Illness, costs of administration; presentation and allowance of claims, insolvent estates, etc. Chapter XVIII. PAYMENT OF LEGACIES: Legacies subordinate ts debts; ademption and abatement of legacies; priority between legacies and contingent, future or unknown debts; payment of legacies, interest, etc. Chapter XIX. DISTRIBUTION OF INTESTATE ESTATES: Order, time and mode of distribution; rights of husband, widow and next of kin, right of presentation, payment of distributive share, etc Chapter XX. ADMINISTRATION ACCOUNTS: Time and manner of accounting, charges and allowances In account; commissions and compensation, etc. Part IV.— TERMINATION OF OFFICE. Chapter XXI. REVOCATION OP LETTERS— REMOVAL— BBSIO- NATION: Covering the subject generally. Part v.— REMEDIES. Chapter XXII. ACTIONS BY EXECUTORS AND ADMINISTRA- TORS: Power to sue before probate or grant of letters; survival of actions; actions In personal and representative capacity, etc. Chapter XXIII. ACTIONS AGAINST EXECUTORS AND ADMIN- ISTRATORS: Survival of actions; particular lia- bilities; attachment and gamlshnoent; Judgments, executions and other proceedings; order of liabil- ity of assets; suits on bonds, etc. Chapter XXIV. STATUTE OP LIMITATIONS— SET-OFF: General and special statute of limitations, set-off, eto. Chapter XXV. EVIDENCE AND COSTS: Covering the subject generally. I Vol. 696 Pages. $3.75, Net, Delivered. C1395 (Ue$t Publlsbing €o.. St Paul mintie (18) © ganbBooft of By Wn. L. CLARK. Jr., Author of "Criminal Law," "Criminal Procedure," and "Contracts." TABLE OF CONTENTS. Chapter I. OF THE NATURE OF A CORPORATION: Deflnition and creation; limited powers; attri- butes and incidents; corporation as a person, citizen, etc ; kinds of corporations, etc. Chapter II. CREATION AND CITIZENSHIP OF CORPO- RATIONS: Covering the subject generally, in- cluding power to create; general and special laws; ratification of claim to corporate exist- ence; agreement between corporation' and state — acceptance of charter; agreement between corporators and corporation ; purpose of incorpo- ration; corporate name, residence, and citizen- ship of corporation ; extension of charter; proof of corporate existence, etc. Chapter HI. EFFECT OF IRREGULAR INCORPORATION: Corporations de facto ; estoppel to deny corpo- rate existence; ItabUity of stockholders as part- ners. Chapter IV. RELATION BETWEEN CORPORATION AND ITS PROMOTERS : Liability for expenses and services of promoters ; liability on contract by promoters; liability of promoters to corporation and stockholders, etc. Chapter V. POWERS AND LIABILITIES OF CORPORA- TIONS: Express and implied powers; con- struction of charter ; power to hold realty; con- tracts and conveyances, etc. Chapter VI. POWERS AND LIABILITIES OF CORPORA- TIONS (Continued) : The doctrine of ultra vires. Chapter VII. POWERS AND LIABILITIES OP CORPORA- TIONS (Continued): Responsibility for torts and crimes ; contempt of court. Chapter VIII. THE CORPORATION AND THE STATE: Charter as a contract; police power of the state; power of eminent domain; repeal and amend- ment of charter; taxation of corporation. Chapter IX. DISSOLUTION OF CORPORATIONS: How ef- fected; equity jurisdiction; eSect of diSBoln- tiou, etc. Chapter X. MEMBERSHIP IN CORPORATIONS: Capital stock and capital; nature of corporate shares; certificates of stock ; subscriptions to stock; re- lease and discharge of subscriber, etc., covering the subject generally. Chapter XI. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Right to inspect books and papers ; right to vote ; profits and dividends ; increase of cap- ital; preferred stock; watered and bonus stock; action by stockholders for injuries to corpora- tion; expulsion of members, etc. Chapter XII. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Covering transfer of shares. Chapter Xm. MANAGEMENT OF CORPORATIONS— OFFI- CERS AND AGENTS: Powers of majority of stockholders; by-laws; stockholders' meetings; election and api>ointment of ofScers and agents: powers and liabilities of officers and agents; re- moval of officers and agents, eto., covering the subject generally. Chapter XIV. RIGHTS AND REMEDIES OF CREDITORS; Relation between creditors and the corporation, covering, inter alia, property subject to execu- tion ; assets as a trust fund for creditors; franfl- ulent conveyances; assignment for benefit of creditors; preferences; dissolution, injunction, and receivers; relation between creditors and stockholders, covering, inter alia, statutory lia- bility of stockholders; contribution between stockholders, etc. ; relation between creditors and officers, covering preferences to officers who are creditors; statutory liability of officers. Chapter XV. FOREIGN CORPORATIONS: Covering the sub- ject generally. APPENDIX. The logical conception of a corporation. I Volume. 740 pages. $3.75. net, delivered. West Publishing Co , St. Paul, Minn. C147a_ (19) C6e ^orn6oo& ^txkB. @ ganbBooft of ^Pe £at» of (|)artnev0pip TABLE OF CONTENTS. Chapter I. DEFINITION AND ESTABLISHMENT OP RELATION: What constitutes a partner- ship; tests of intention; sharing profits; pro- moters of corporations; defective corpora- tion; delectus personarum; subpartnerships; holding out, etc. Chapter II. KINDS OF PARTNERSHIPS AND PART- NERS: Classification of partnerships and partners; universal, general, and special part- nerships; limited partnerships; joint-stock companies; mining partnerships; trading and nontrading partnerships, etc. Chapter III. CHARACTERISTIC FEATURES OP PARTNERSHIPS: Legal and mercantile view of a firm; partnership name; partner- ship property; partnership capital; snares in partnerships, etc. Chapter IV. IMPLIED RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority; duty to ex- ercise care, skill, and good faith; right to compete with firm; compensation for serv- ices; interest on balances; partner's lien; division of profits, etc. Chapter V. ARTICLES OP PARTNERSHIP: Purpose and effect; rules of construction; usual clauses in articles, etc.; covering the subject generally. Chapter VI. RIGHTS AND LIABILITIES AS TO THIRD PERSONS: Express and implied authority of partner to bind firm; particu- lar powers; liability of partners to third Sersons; incoming partners; assumption of ebts; rights in firm and separate property, etc. Chapter VII. ACTIONS BETWEEN PARTNERS: AcHon on partnership claim or liability, at law, in equity, or under the code; actions between firms with a common member; actions on individual obligations; equitable actions in general; accounting and dissolution; spe- cific performance; injunction; receivers, etc. Chapter VIII. ACTIONS BETWEEN PARTNERS AND THIRD PJiiKSONS: Parties in actions by and against partners; effect of changes in firm; disqualification of one partner to sue; action in firm name, etc. Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships for a definite and indefinite time; causes subject to stipulation; causes not sub- ject to stipulation; causes for which a court will decree a dissolution; consequences of dissolution as to third persons and as to partners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establishment of relation; general and special members; certificate; contribution of general and special partners; name; sign; rights and liabilities; with- drawal, alteration, and interference; insol- vency; termination of relation; change from limited to general liability; actions, etc. Chapter XI. JOINT-STOCK COMPANIES: Definition and nature; transfer of shares; powers of mem- bers and ofiicers; rights and liabilities; ac- tions, etc. 1 Volume, 6i6 pages. $3.75, net, delivered. West Publishing Co , St. Paul, Minn. C1471 (20) <3n iU ^ornBooft ^tvitB.) (g ganbSooa of (^<\uit^ (phaHn^. (f 2 (fen). % ^gipman, fefe. Q5.. Author of "Shipman's Common-Law Pleading.' TABLE OF CONTENTS. CliapteT I. EQUm PLEADING IN GENERAL: Cov- ering nature and scope of pleadings in eq- uity Chapter H. PARTIES: Giving general rules, and covering classification of parties as necessary, proper but not indispensable, formal, and parties with separable interests; parties complain- ant and respondent; joinder, etc. Chapter lU. PROCEEDINGS IN AN EQUITABLE SUIT: Indicating the steps usually taken and the method of procedure, as the bill, appearance, proceedings on default; the modes of defense, by disclaimer, demurrer, plea, or answer; the replication; interlocu- tory proceedings, as amendment, injunc- tions, production of documents, interven- tion; the evidence, hearing, and decree; the correction, reversal, or enforcement of de- crees, etc. Chapter IV. BILLS IN EQUITY: Covering definition and classification, and discussing original bills, and bills not original, with a summary of the general rules covering the bill, etc. Chapter V. THE DISCLAIMER: Definition, nature, and use. Chapter VI. DEMURRER: Definition; form of demurrer, and grounds therefor; orders sustaining or overruling demurrer, etc. Chapter VII. THE PLEA: Definition, nature, and oflSce of pleas,' grounds for pleas, their form, support- ing answers, etc. Chapter VIH. THE ANSWER: Nature and office, substance and effect, of the answer, and the character- istics thereof. Chapter IX. THE REPLICATION. 644 PAGES. $3.75. NET, DELIVERED. WEST PUBLISHING C0.,5t. Paul, Minn. C1630_ _. (21) (C9e ^otnSooft ^eriea.) (^ ^anbfiooft of ^Pe Ban? of 6ooft of QSg (gofiert (Qt. f ug^ec, (Jtt. ^. TABLE OF CONTENTS, The Origin and History of the Admiralty, and its Extent in the United States. Admiralty Jurisdiction as Governed by the Sub- ' ject Matter. General Average and Marine Insurance. Bottomry and Respondentia ; and Liens for Supplies, Repairs, and Other Necessaries. Stevedores' Contracts, Canal Tolls, and Tow- age Contracts. Salvage. Contracts of AfEreightment and Charter Parties. Water Carriage as Affected by the Barter Act of February 13, 1893. Admiralty Jurisdiction in Matters of Tort. The Eight of Action in Admiralty for Injuries Resulting Fatally. Torts to the Property, and Herein of Collision. The Steering and Sailing Rules. Rules as to Narrow Channels, Special Circum- stances, and General Precautions. Damages in Collision Cases. Vessel Ownership Independent of the Limited Liability Act. Rights and Liabilities of Owners as AfEected by' the Limited Liabilitv Act. The Relative Priorities of Maritime Claims. A Summary of Pleading and Practice. APPENDIX. 1. The Mariner's Compass. 2. Statutes Regulating Navigation, Including r (1) The International Rules. (2) The Rules for Coast and Connecting- Inland Waters. (3) The Dividing Lines between the High Seas and Coast Waters. (4) The Lake Pules. (5) The Mississippi Valley Rules. (ti) The Act of March 3, 1899, as to Ob- structing Channels. 3. The Limited Liability Acts, Including; (1) The Act of March 3, 1851, as Amended. (2> The Act of June 26, 18S4. 4. Section 941, Rev. St., as Amended, Regulat- ing Bonding of Vessels. 5. Statutes Regulating Evidence in the Federal Courts. G. Suits in Forma Pauperis. 7. The Admiralty Rules of Practice. I voluma, 503 Pages. $375 delivered. WEST PUBLISHING CO., St. Paul. Minn. 03663 (25) C5e JgottiBooR ^ttm. rPHE Albany Law Journal, in a recent review of one of the volumes of the I L Hornbook Series, writes : " So much has been written upon the merits of the Hornbook Series that anything additional may seem superfluous; yet we cannot refrain from commenting, in passing, upon the general utility, merit, and scope of the series. • • • The series is of untold value to the practicing lawyer, {enabling him to find and refresh bis mind in an instant upon any fundamental principle or variation Ifaerefrom of which he may be in doubt, and furnishing an ever-ready and convenient digest of the law. " This emphasizes the fact, which has also been practically recognized by the members of the bar who have examined the volumes issued under this name, that, although low in price, they are not, in consequence, cheap books. They are elemen- tary in the sense that they deal with the elementary branches of law, but they are not by any means elementary in the sense that they fail to give the compre- hensive handling which the practitioner, as distinguished from the law student, re- quires. In planning the style and character of this series, the controlling idea was that any principle of law could be stated in simple and intelligible terms, if the man who made the statement understood the principle, and knew how to express himself. It was to some extent an attack upon the old theory that a certain amount of obscurity in a legal document heightened the effect of learning. It was main- tained, instead, that any legal principle could be stated in simple and intelligible terms, and each separate branch of the law, if carefully studied with this in view, could be mapped out so that the fundamental principles involved could be shown in an orderly sequence, and in their relation to each other. The soundness of the theory has been shown by the success of the Hornbook Series. The several vol- umes have been prepared by different authors, carefully chosen from the field of legal writers, with the object of securing thorough and expert treatment of the particular subject assigned in each instance. The method of presentation was at first •considered a novel one, but has now become so well known, through the seventeen works issued, that the Albany Law Journal could refer to it in the terms quoted at the beginning of this notice. The books have been found so exact in statement, so convenient in arrangement, and so unmistakably clear in style, that they have been adopted as the basis of instruction in over seventy laW schools. At the same time, they have been found by practitioners to be exactly the kind of book that a prac- titioner needs to have on his desk for current reference. He presumably knows the law, yet he often desires to refresh his memory regarding some special branch before he takes up a case involving questions relating to it, and for that purpose the arrangement of black-letter paragraphs for the statement of principles is pecul- iarly convenient. At the same time, the exceptions and modifications of these principles are stated in a different type, so that it is possible for him to go into de- tails of any question when he desires to do so. The authorities are grouped in notes at the foot of the page, and their completeness is evidenced by such testi- mony as the following : "I found upon page 58 of this small volume [Clark's Criminal Law], in a small compass, h statement of the divergent views, and a collation of the authorities pro and con [on a certain ques- tion], all contained in a more condensed and satisfactory form than I have found in any other treatise." — Hon. J. M. Dickinson, Asst. U. S. Atty. Gen. "I found in Clark's Criminal Procedure, under ' Jurisdiction, ' authorities regarding the ques- tion of asportation, for which I had on a previous occasion spent months of patient search. Fetter on Equity has also already paid for itself many times over. " — U. S. G. Fitzer, Prosecuting Attorney, Martinsburg, W. Va. C1328-6 (26) KF 957 n88 1900 S^mthoc Vol. Wort on, raiavle.'! Phelra W""* ' Copy HdTak of the law of bills and noti !s Date Borrower's Name